Senate Bill sb0686e1
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1 A bill to be entitled
2 An act relating to legal proceedings involving
3 minor children; providing for the transfer of
4 the guardian ad litem program to the Statewide
5 Public Guardianship and Children's
6 Representation Office; renaming each guardian
7 ad litem office as a Circuit Office of
8 Children's Representation; providing for a
9 study to determine the organizational placement
10 of the Statewide Public Guardianship and
11 Children's Representation Office and Circuit
12 Children's Representation Offices with
13 recommendations to the Legislature by a
14 specified date; providing for county funding of
15 program elements; amending s. 25.388, F.S.;
16 including the Statewide Public Guardianship and
17 Children's Representation Office as recipients
18 of moneys from the Family Courts Trust Funds;
19 amending s. 744.701, F.S.; redesignating the
20 Public Guardianship Act as the "Public
21 Guardianship and Children's Representation
22 Act"; amending s. 744.702, F.S.; providing
23 legislative intent with respect to children
24 involved in dependency proceedings and
25 incapacitated persons; amending s. 744.7021,
26 F.S.; establishing the Statewide Public
27 Guardianship and Children's Representation
28 Office within the Department of Elderly
29 Affairs; providing a term of office and
30 qualifications for the executive director;
31 providing for appointment of deputy directors;
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1 providing qualifications for deputy directors;
2 requiring the Statewide Public Guardianship and
3 Children's Representation Office to establish
4 standards for the representation of children;
5 requiring an annual report to the Legislature;
6 requiring the office to establish a Circuit
7 Office of Children's Representation in each
8 judicial circuit; authorizing the circuit
9 offices to provide and coordinate the provision
10 of legal services for children when private
11 representation is unavailable; requiring the
12 circuit offices to provide representation for
13 children in dependency proceedings; providing
14 for appointing a lay representative and an
15 attorney to represent the best interest of the
16 child; authorizing the Statewide Public
17 Guardianship and Children's Representation
18 Office or the Circuit Offices of Children's
19 Representation to establish a nonprofit
20 organization to assist in funding the services
21 provided to children; amending ss. 744.703,
22 744.706, 744.707, 744.708, 744.7081, 400.148,
23 F.S., relating to the office of public
24 guardian, budget, procedures and rules, reports
25 and standards, access to records, and Medicaid
26 contracts; conforming provisions to changes
27 made by the act; amending s. 27.51, F.S.;
28 authorizing a public defender to enter into an
29 agreement for representation of a child in a
30 dependency proceeding; amending s. 39.001,
31 F.S.; requiring the Statewide Public
2
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1 Guardianship and Children's Representation
2 Office to participate in revising the statewide
3 plan to prevent abuse, abandonment, and neglect
4 of children; requiring that the Circuit Offices
5 of Children's Representation participate in
6 revising local plans; amending s. 39.01, F.S.;
7 redefining the term "party" to include, under
8 certain circumstances, a guardian ad litem;
9 limiting a child's right to file documents;
10 providing for notice to a party; providing for
11 excusing a child from appearing in court;
12 amending s. 39.013, F.S.; providing for
13 representation of children in proceedings under
14 ch. 39, F.S.; amending s. 39.202, F.S.;
15 authorizing access to records by the guardian
16 ad litem and the child; amending s. 39.302,
17 F.S.; requiring notification of the guardian ad
18 litem or legal counsel of reports of
19 institutional child abuse, neglect, or
20 abandonment; amending s. 39.305, F.S.;
21 providing for the Statewide Public Guardianship
22 and Children's Representation Office to
23 participate in developing the model plan for
24 intervention and treatment in certain
25 sexual-abuse cases; amending s. 39.402, F.S.;
26 providing for notice of and representation for
27 a child at a shelter hearing; providing for
28 continuance of the hearing in order for the
29 child to obtain representation; amending s.
30 39.407, F.S.; authorizing legal counsel to
31 represent a child placed in residential
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1 treatment; requiring that notice and
2 information regarding the child's treatment be
3 provided to the child's guardian ad litem and
4 legal counsel; amending s. 39.4085, F.S.;
5 requiring that the child, the guardian ad
6 litem, or legal counsel participate in
7 developing a case plan; providing for the right
8 of a child to be heard at all review hearings;
9 providing for appointment of a guardian ad
10 litem or legal counsel; repealing s. 39.4086,
11 F.S., relating to a pilot program for
12 appointing attorneys ad litem for dependent
13 children; amending s. 39.502, F.S.; providing
14 for notice and service of process on legal
15 counsel or guardian ad litem; amending s.
16 39.504, F.S.; authorizing the child's guardian
17 ad litem or attorney to file for an injunction
18 to prevent child abuse or an unlawful sexual
19 offense; amending s. 39.505, F.S.; specifying
20 that the guardian ad litem need not file an
21 answer to a petition or pleading; amending s.
22 39.510, F.S.; authorizing the representative of
23 a party to appeal a court order; amending s.
24 39.521, F.S.; requiring that a case plan and
25 certain reports be provided to specified
26 parties; limiting discharge of a guardian ad
27 litem or legal counsel unless other
28 representation is provided to a child;
29 authorizing approval of withdrawal request;
30 amending s. 39.701, F.S.; authorizing the court
31 to dismiss a child from a judicial review
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1 hearing; requiring that notice be provided to
2 the child and legal counsel; requiring service
3 of reports on specified parties; requiring the
4 court to determine whether a child needs a
5 guardian ad litem or attorney; amending s.
6 39.801, F.S.; requiring that notice of a
7 petition be served on a child; exempting a
8 child's legal counsel from payment of fees for
9 service of process or other papers; amending s.
10 39.802, F.S.; providing for a child through
11 legal counsel to file a petition for
12 termination of parental rights; amending s.
13 39.805, F.S.; providing that a guardian ad
14 litem need not file an answer; amending s.
15 39.806, F.S.; providing requirements for a
16 child in filing a petition for termination of
17 parental rights; amending s. 39.807, F.S.;
18 providing requirements for the representation
19 provided to a child by the guardian ad litem or
20 legal counsel; eliminating provisions related
21 to posting of a bond and service on a guardian
22 ad litem; amending s. 39.808, F.S.; providing
23 for appointment of legal counsel following a
24 petition to terminate parental rights; amending
25 s. 39.810, F.S.; providing for the court to
26 consider the expressed interest of the child in
27 a hearing on a petition to terminate parental
28 rights; providing that the court must consider
29 information related to best-interest
30 requirements provided by a guardian ad litem;
31 amending s. 39.811, F.S.; requiring that the
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1 court consider information provided by the
2 child or the guardian ad litem in determining
3 whether to retain jurisdiction over a dependent
4 child; amending s. 39.820, F.S.; amending the
5 definition of the term "guardian ad litem" to
6 eliminate references to the guardian ad litem
7 program; amending s. 39.821, F.S.; providing
8 qualifications for guardians ad litem and staff
9 members of the Circuit Office of Children's
10 Representation providing representation to
11 children; amending s. 39.822, F.S.; designating
12 who may be a guardian ad litem; providing for
13 appointment of the Circuit Office of Children's
14 Representation when the child and parents are
15 indigent; requiring background checks of
16 specified guardians ad litem; creating s.
17 39.8225, F.S.; providing powers and duties of a
18 guardian ad litem; requiring that a guardian ad
19 litem represent the child's best interest;
20 requiring that a guardian ad litem investigate
21 allegations in a pleading filed; providing
22 requirements for conducting an investigation;
23 requiring that the guardian ad litem and
24 attorney consult with the child; requiring a
25 report; providing for attorney review of the
26 report and presentation to the court; requiring
27 that the court be informed of the expressed
28 interest of the child; authorizing the court to
29 issue a blanket order for the guardian ad litem
30 to obtain information; authorizing the guardian
31 ad litem to petition the court to issue orders;
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1 providing for notice of written reports to all
2 parties; requiring that the guardian ad litem
3 file certain pleadings through counsel;
4 creating s. 39.84, F.S.; providing for
5 confidentiality; creating s. 39.86, F.S.;
6 providing immunity for a guardian ad litem,
7 staff or volunteer in a Circuit Office of
8 Children's Representation, and a
9 court-appointed psychologist; creating s.
10 39.8226, F.S.; providing for appointment of
11 legal counsel for a child; requiring that the
12 court determine capacity of a child before
13 appointing legal counsel; providing for
14 appointment of legal counsel when the Circuit
15 Office of Children's Representation is
16 providing representation; authorizing the
17 Circuit Office of Children's Representation to
18 petition for appointment of counsel; amending
19 s. 40.24, F.S.; providing for payment for
20 jurors to be used to fund the representation of
21 children in a proceeding under ch. 39, F.S.,
22 and related proceedings; amending s. 215.5601,
23 F.S.; providing for the Director of the
24 Statewide Public Guardianship and Children's
25 Representation Office rather than the director
26 of the guardian ad litem program to be a member
27 of the Lawton Chiles Endowment Fund Advisory
28 Council; amending s. 985.308, F.S.;
29 substituting the Statewide Public Guardianship
30 and Children's Representation Office for the
31 guardian ad litem program on the membership of
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1 a sexual abuse intervention network; reenacting
2 ss. 39.3035, 39.202, F.S., relating to child
3 advocacy centers and adjudicatory hearings, to
4 incorporate the amendment to s. 39.202, F.S.,
5 in references thereto; reenacting s. 63.052,
6 F.S., relating to the designation of guardians,
7 to incorporate the amendment to 39.701, F.S.,
8 in references thereto; reenacting s. 984.03,
9 F.S., relating to probation and community
10 control, to incorporate the amendment to s.
11 39.402, F.S., in references thereto; providing
12 an effective date.
13
14 Be It Enacted by the Legislature of the State of Florida:
15
16 Section 1. The guardian ad litem program is
17 transferred to the Statewide Public Guardianship and
18 Children's Representation Office, and each circuit guardian ad
19 litem office is renamed as the Circuit Office of Children's
20 Representation.
21 Section 2. The Statewide Public Guardianship and
22 Children's Representation Office, in consultation with
23 appropriate parties, including the judicial branch, Office of
24 the Governor, Attorney General, and a representative of the
25 Justice Administrative Commission, shall study the
26 organizational placement of the Statewide Public Guardianship
27 and Children's Representation Office, including the Deputy
28 Director and related staff and the Circuit Offices of
29 Children's Representation, and shall make recommendations
30 regarding the placement to the Legislature by February 1,
31 2003.
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1 Section 3. Effective October 1, 2002, the guardian ad
2 litem program in the Office of the State Court Administrator
3 and in each judicial circuit and all of its statutory powers,
4 duties, and functions, and its records, personnel, property,
5 and unexpended balances of appropriations, allocations, or
6 other funds, are transferred by a type two transfer, as
7 defined in section 20.06(2), Florida Statutes, to the
8 Statewide Public Guardianship and Children's Representation
9 Office. The counties shall continue to fund those existing
10 elements of the guardian ad litem offices when the offices
11 become Circuit Offices of Children's Representation. Such
12 funding shall be consistent with current practice including
13 providing for additions to office staffing until the
14 Legislature expressly assumes the responsibility for funding
15 such elements.
16 Section 4. Subsection (1) of section 25.388, Florida
17 Statutes, is amended to read:
18 25.388 Family Courts Trust Fund.--
19 (1)(a) The trust fund moneys in the Family Courts
20 Trust Fund, administered by the Supreme Court, shall be used
21 to implement family court plans in all judicial circuits of
22 this state.
23 (b) The Supreme Court, through the Office of the State
24 Courts Administrator, shall adopt a comprehensive plan for the
25 operation of the trust fund and the expenditure of any moneys
26 deposited into the trust fund. The plan shall provide for a
27 comprehensive integrated response to families in litigation,
28 including domestic violence matters, the Statewide Public
29 Guardianship and Children's Representation Office's
30 representation of children in dependency proceedings guardian
31 ad litem programs, mediation programs, legal support,
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1 training, automation, and other related costs incurred to
2 benefit the citizens of the state and the courts in relation
3 to family law cases. The trust fund shall be used to fund the
4 publication of the handbook created pursuant to s. 741.0306.
5 Section 5. Section 744.701, Florida Statutes, is
6 amended to read:
7 744.701 Short title.--This act shall be known and may
8 be cited as the "Public Guardianship and Children's
9 Representation Act."
10 Section 6. Section 744.702, Florida Statutes, is
11 amended to read:
12 744.702 Legislative intent.--The Legislature finds
13 that children involved in dependency proceedings and
14 incapacitated persons are the state's most vulnerable
15 residents.
16 (1) If a minor child is a party to a dependency
17 proceeding, every effort should be made to ensure that the
18 child has representation through a guardian ad litem or legal
19 counsel. If the child and the child's parents are indigent,
20 the state should ensure that the child is protected in
21 dependency proceedings. One of the purposes of this part is to
22 ensure that the rights and interests of a child who is a party
23 to a dependency proceeding are protected when those rights and
24 interests are not otherwise represented.
25 (2) The Legislature finds that private guardianship
26 for an incapacitated person is inadequate where there is no
27 willing and responsible family member or friend, other person,
28 bank, or corporation available to serve as guardian for an
29 incapacitated person, and such person does not have adequate
30 income or wealth for the compensation of a private guardian.
31 The Legislature intends through this act to establish the
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1 Statewide Public Guardianship and Children's Representation
2 Office, and permit the establishment of offices of public
3 guardian for the purpose of providing guardianship services
4 for incapacitated persons when no private guardian is
5 available. The Legislature further finds that alternatives to
6 guardianship and less intrusive means of assistance should
7 always be explored, including, but not limited to, guardian
8 advocates, before an individual's rights are removed through
9 an adjudication of incapacity. The purpose of this
10 legislation is to provide a public guardian only to those
11 persons whose needs cannot be met through less drastic means
12 of intervention.
13 Section 7. Section 744.7021, Florida Statutes, is
14 amended to read:
15 744.7021 Statewide Public Guardianship and Children's
16 Representation Office.--There is hereby created the Statewide
17 Public Guardianship and Children's Representation Office
18 within the Department of Elderly Affairs. The Department of
19 Elderly Affairs shall provide administrative support and
20 service to the office to the extent requested by the executive
21 director within the available resources of the department. The
22 Statewide Public Guardianship and Children's Representation
23 Office may request the assistance of the Inspector General of
24 the Department of Elderly Affairs in providing auditing
25 services, and the Office of General Counsel of the department
26 may provide assistance in rulemaking and other matters as
27 needed to assist the Statewide Public Guardianship and
28 Children's Representation Office. The Statewide Public
29 Guardianship and Children's Representation Office shall not be
30 subject to control, supervision, or direction by the
31
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1 Department of Elderly Affairs in the performance of its
2 duties.
3 (1) The head of the Statewide Public Guardianship and
4 Children's Representation Office is the executive director,
5 who shall be appointed by the Governor for a term of 3 years
6 and who shall report to the Governor. The executive director
7 must be a licensed attorney who has experience in managing
8 legal services or similar management experience. The executive
9 director shall appoint a deputy director of the Children's
10 Representation Program and a deputy director of the Statewide
11 Public Guardianship Program. The deputy director of the
12 Children's Representation Program must be a licensed attorney
13 who is knowledgeable in dependency law and has experience in
14 managing the provision of legal services. The deputy director
15 of the Statewide Public Guardianship Program must be a
16 licensed attorney with a background in guardianship law and
17 knowledge of social services available to meet the needs of
18 incapacitated persons., shall serve on a full-time basis, and
19 shall personally, or through representatives of the office,
20 carry out the purposes and functions of the Statewide Public
21 Guardianship Office in accordance with state and federal law.
22 The executive director shall serve at the pleasure of and
23 report to the Governor.
24 (2) The Statewide Public Guardianship and Children's
25 Representation Office shall, within available resources, have
26 oversight responsibilities for all public guardians.
27 (a) The office shall review the current public
28 guardian programs in Florida and other states.
29 (b) The office, in consultation with local
30 guardianship offices, shall develop statewide performance
31 measures and standards.
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1 (c) The office shall review the various methods of
2 funding guardianship programs, the kinds of services being
3 provided by such programs, and the demographics of the wards.
4 In addition, the office shall review and make recommendations
5 regarding the feasibility of recovering a portion or all of
6 the costs of providing public guardianship services from the
7 assets or income of the wards.
8 (d) No later than October 1, 2000, the office shall
9 submit to the Governor, the President of the Senate, the
10 Speaker of the House of Representatives, and the Chief Justice
11 of the Supreme Court an interim report describing the progress
12 of the office in meeting the goals as described in this
13 section. No later than October 1, 2001, the office shall
14 submit to the Governor, the President of the Senate, the
15 Speaker of the House of Representatives, and the Chief Justice
16 of the Supreme Court a proposed public guardianship plan
17 including alternatives for meeting the state's guardianship
18 needs. This plan may include recommendations for less than the
19 entire state, may include a phase-in system, and shall include
20 estimates of the cost of each of the alternatives. Each year
21 thereafter, the office shall provide a status report and
22 provide further recommendations to address the need for public
23 guardianship services and related issues.
24 (e) The office may provide assistance to local
25 governments or entities in pursuing grant opportunities. The
26 office shall review and make recommendations in the annual
27 report on the availability and efficacy of seeking Medicaid
28 matching funds. The office shall diligently seek ways to use
29 existing programs and services to meet the needs of public
30 wards.
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1 (f) The office shall develop a guardianship training
2 program. The training program may be offered to all guardians
3 whether public or private. The office shall establish a
4 curriculum committee to develop the training program specified
5 in this part. The curriculum committee shall include, but not
6 be limited to, probate judges. A fee may be charged to private
7 guardians in order to defray the cost of providing the
8 training. In addition, a fee may be charged to any training
9 provider for up to the actual cost of the review and approval
10 of their curriculum. Any fees collected pursuant to this
11 paragraph shall be deposited in the Department of Elderly
12 Affairs Administrative Trust Fund to be used for the
13 guardianship training program.
14 (3)(a) The office shall establish standards for
15 representation of children by the Circuit Offices of
16 Children's Representation, including recommended case loads
17 for attorneys and for volunteers and staff lay representatives
18 of a child.
19 (b) The office shall document the need for child
20 representation throughout the state and report annually on
21 October 1 to the Legislature concerning the need and the cost
22 to adequately provide representation for children in
23 dependency proceedings. The report must include information
24 concerning the type and level of advocacy provided in prior
25 years by both public entities and private entities providing
26 contract or pro bono services.
27 (c) The office shall develop performance measures and
28 standards for its services throughout the state and shall
29 annually report on the performance of the Circuit Offices of
30 Children's Representation.
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1 (d) The office shall establish a Circuit Office of
2 Children's Representation in each judicial circuit in the
3 state. Each circuit office shall consist of an administrator,
4 staff or pro bono attorneys, social workers, volunteer
5 coordinators, volunteer or staff lay representatives for
6 children, and support staff. The administrator in each office
7 must be knowledgeable and proficient in the legal process and
8 the legal representation of children in court proceedings, as
9 well as discovery and mediation processes, and in the
10 supervision and training of volunteers.
11 (e) Each Circuit Office of Children's Representation
12 may provide and coordinate the provision of legal
13 representation of children in each aspect of dependency
14 proceedings when the child and the child's parents are
15 indigent pursuant to s. 27.52 or the child's rights are not
16 otherwise protected. The office must provide representation
17 for each child not otherwise represented who is a party to a
18 dependency proceeding.
19 (f) If a Circuit Office of Children's Representation
20 is appointed to represent a child, a staff or volunteer
21 representative and a staff or pro bono attorney shall be
22 assigned to provide the office's representation of the best
23 interests of the child.
24 (g) To the extent possible, the Statewide Public
25 Guardianship and Children's Representation Office or the
26 Circuit Offices of Children's Representation may augment staff
27 through agreements or contracts with the public defenders,
28 private entities, or public or private colleges or
29 universities for contract or pro bono legal representation to
30 children as court-appointed counsel for the child, to provide
31
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1 pro bono representation to the office, or to provide non-legal
2 volunteer representation.
3 (h) The Statewide Public Guardianship and Children's
4 Representation Office and each Circuit Office of Children's
5 Representatives may establish a not-for-profit support
6 organization under section 501(c)(3) of the Internal Revenue
7 Code to assist in funding the needs of children receiving
8 services through the Circuit Offices of Children's
9 Representation.
10 (4)(3) The office may conduct or contract for
11 demonstration projects, within funds appropriated or through
12 gifts, grants, or contributions for such purposes, to
13 determine the feasibility or desirability of new concepts of
14 organization, administration, financing, or service delivery
15 designed to preserve the civil and constitutional rights of
16 persons of marginal or diminished capacity. Any gifts, grants,
17 or contributions for such purposes shall be deposited in the
18 Department of Elderly Affairs Administrative Trust Fund.
19 (5)(4) The office has authority to adopt rules
20 pursuant to ss. 120.536(1) and 120.54 to carry out the
21 provisions of this section.
22 Section 8. Subsections (1) and (6) of section 744.703,
23 Florida Statutes, are amended to read:
24 744.703 Office of public guardian; appointment,
25 notification.--
26 (1) The executive director of the Statewide Public
27 Guardianship and Children's Representation Office, after
28 consultation with the chief judge and other circuit judges
29 within the judicial circuit and with appropriate advocacy
30 groups and individuals and organizations who are knowledgeable
31 about the needs of incapacitated persons, may establish,
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1 within a county in the judicial circuit or within the judicial
2 circuit, an office of public guardian and if so established,
3 shall create a list of persons best qualified to serve as the
4 public guardian, and such qualifications shall include review
5 pursuant to s. 744.3135. The public guardian must have
6 knowledge of the legal process and knowledge of social
7 services available to meet the needs of incapacitated persons.
8 A nonprofit corporation under s. 744.309(5) may be appointed
9 public guardian only if:
10 (a) It has been granted tax-exempt status from the
11 United States Internal Revenue Service; and
12 (b) It maintains a staff of professionally qualified
13 individuals to carry out the guardianship functions, including
14 a staff attorney who has experience in probate areas and
15 another person who has a master's degree in social work, or a
16 gerontologist, psychologist, registered nurse, or nurse
17 practitioner.
18 (6) Public guardians who have been previously
19 appointed by a chief judge prior to the effective date of this
20 act pursuant to this section may continue in their positions
21 until the expiration of their term pursuant to their
22 agreement. However, oversight of all public guardians shall
23 transfer to the Statewide Public Guardianship and Children's
24 Representation Office upon the effective date of this act. The
25 executive director of the Statewide Public Guardianship and
26 Children's Representation Office shall be responsible for all
27 future appointments of public guardians pursuant to this act.
28 Section 9. Section 744.706, Florida Statutes, is
29 amended to read:
30 744.706 Preparation of budget.--Each public guardian,
31 whether funded in whole or in part by money raised through
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1 local efforts, grants, or any other source or whether funded
2 in whole or in part by the state, shall prepare a budget for
3 the operation of the office of public guardian to be submitted
4 to the Statewide Public Guardianship and Children's
5 Representation Office. As appropriate, the Statewide Public
6 Guardianship and Children's Representation Office will include
7 such budgetary information in the Department of Elderly
8 Affairs' legislative budget request. The office of public
9 guardian shall be operated within the limitations of the
10 General Appropriations Act and any other funds appropriated by
11 the Legislature to that particular judicial circuit, subject
12 to the provisions of chapter 216. The Department of Elderly
13 Affairs shall make a separate and distinct request for an
14 appropriation for the Statewide Public Guardianship and
15 Children's Representation Office. However, this section does
16 shall not be construed to preclude the financing of any
17 operations of the office of the public guardian by moneys
18 raised through local effort or through the efforts of the
19 Statewide Public Guardianship and Children's Representation
20 Office.
21 Section 10. Section 744.707, Florida Statutes, is
22 amended to read:
23 744.707 Procedures and rules.--The public guardian,
24 subject to the oversight of the Statewide Public Guardianship
25 and Children's Representation Office, is authorized to:
26 (1) Formulate and adopt necessary procedures to assure
27 the efficient conduct of the affairs of the ward and general
28 administration of the office and staff.
29 (2) Contract for services necessary to discharge the
30 duties of the office.
31
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1 (3) Accept the services of volunteer persons or
2 organizations and provide reimbursement for proper and
3 necessary expenses.
4 Section 11. Subsections (3), (4), (5), (7), and (8) of
5 section 744.708, Florida Statutes, are amended to read:
6 744.708 Reports and standards.--
7 (3) A public guardian shall file an annual report on
8 the operations of the office of public guardian, in writing,
9 by September 1 for the preceding fiscal year with the
10 Statewide Public Guardianship and Children's Representation
11 Office, which shall have responsibility for supervision of the
12 operations of the office of public guardian.
13 (4) Within 6 months after of his or her appointment as
14 guardian of a ward, the public guardian shall submit to the
15 clerk of the court for placement in the ward's guardianship
16 file and to the executive director of the Statewide Public
17 Guardianship and Children's Representation Office a report on
18 his or her efforts to locate a family member or friend, other
19 person, bank, or corporation to act as guardian of the ward
20 and a report on the ward's potential to be restored to
21 capacity.
22 (5) An independent audit by a qualified certified
23 public accountant shall be performed at least every 2 years.
24 The audit should include an investigation into the practices
25 of the office for managing the person and property of the
26 wards. A copy of the report shall be submitted to the
27 Statewide Public Guardianship and Children's Representation
28 Office. In addition, the office of public guardian shall be
29 subject to audits or examinations by the Auditor General and
30 the Office of Program Policy Analysis and Government
31 Accountability pursuant to law.
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1 (7) The ratio for professional staff to wards shall be
2 1 professional to 40 wards. The Statewide Public Guardianship
3 and Children's Representation Office may increase or decrease
4 the ratio after consultation with the local public guardian
5 and the chief judge of the circuit court. The basis of the
6 decision to increase or decrease the prescribed ratio shall be
7 reported in the annual report to the Governor, the President
8 of the Senate, the Speaker of the House of Representatives,
9 and the Chief Justice of the Supreme Court.
10 (8) The term "professional," for purposes of this
11 part, shall not include the public guardian nor the executive
12 director of the Statewide Public Guardianship and Children's
13 Representation Office. The term "professional" shall be
14 limited to those persons who exercise direct supervision of
15 individual wards under the direction of the public guardian.
16 Section 12. Section 744.7081, Florida Statutes, is
17 amended to read:
18 744.7081 Access to records by Statewide Public
19 Guardianship and Children's Representation Office;
20 confidentiality.--Notwithstanding any other provision of law
21 to the contrary, any medical, financial, or mental health
22 records held by an agency, or the court and its agencies,
23 which are necessary to evaluate the public guardianship
24 system, to assess the need for additional public guardianship,
25 or to develop required reports, shall be provided to the
26 Statewide Public Guardianship and Children's Representation
27 Office upon that office's request. Any confidential or exempt
28 information provided to the Statewide Public Guardianship and
29 Children's Representation Office shall continue to be held
30 confidential or exempt as otherwise provided by law. All
31 records held by the Statewide Public Guardianship and
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1 Children's Representation Office relating to the medical,
2 financial, or mental health of vulnerable adults as defined in
3 chapter 415, persons with a developmental disability as
4 defined in chapter 393, or persons with a mental illness as
5 defined in chapter 394, shall be confidential and exempt from
6 s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
7 This section is subject to the Open Government Sunset Review
8 Act of 1995 in accordance with s. 119.15, and shall stand
9 repealed on October 2, 2004, unless reviewed and saved from
10 repeal through reenactment by the Legislature.
11 Section 13. Subsection (6) of section 400.148, Florida
12 Statutes, is amended to read:
13 400.148 Medicaid "Up-or-Out" Quality of Care Contract
14 Management Program.--
15 (6) The agency shall, jointly with the Statewide
16 Public Guardianship and Children's Representation Office,
17 develop a system in the pilot project areas to identify
18 Medicaid recipients who are residents of a participating
19 nursing home or assisted living facility who have diminished
20 ability to make their own decisions and who do not have
21 relatives or family available to act as guardians in nursing
22 homes listed on the Nursing Home Guide Watch List. The agency
23 and the Statewide Public Guardianship and Children's
24 Representation Office shall give such residents priority for
25 publicly funded guardianship services.
26 Section 14. Present subsection (7) of section 27.51,
27 Florida Statutes, is redesignated as subsection (8) and a new
28 subsection (7) is added to that section to read:
29 27.51 Duties of public defender.--
30 (7) A public defender may enter into an agreement with
31 the Circuit Office of Children's Representation to provide
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1 representation to a child in a dependency proceeding when the
2 court has determined that the child qualifies for independent
3 counsel under s. 39.8226(2)(b) or (3).
4 Section 15. Paragraph (a) of subsection (7) of section
5 39.001, Florida Statutes, is amended to read:
6 39.001 Purposes and intent; personnel standards and
7 screening.--
8 (7) PLAN FOR COMPREHENSIVE APPROACH.--
9 (a) The department shall develop a state plan for the
10 prevention of abuse, abandonment, and neglect of children and
11 shall submit the plan to the Speaker of the House of
12 Representatives, the President of the Senate, and the Governor
13 no later than January 1, 1983. The Department of Education,
14 and the Division of Children's Medical Services Prevention and
15 Intervention of the Department of Health, and the Statewide
16 Public Guardianship and Children's Representation Office shall
17 participate and fully cooperate in the development of the
18 state plan at both the state and local levels. Furthermore,
19 appropriate local agencies and organizations shall be provided
20 an opportunity to participate in the development of the state
21 plan at the local level. Appropriate local groups and
22 organizations shall include, but not be limited to, community
23 mental health centers; Circuit Offices of Children's
24 Representation guardian ad litem programs for children under
25 the circuit court; the school boards of the local school
26 districts; the Florida local advocacy councils; private or
27 public organizations or programs with recognized expertise in
28 working with children who are sexually abused, physically
29 abused, emotionally abused, abandoned, or neglected and with
30 expertise in working with the families of such children;
31 private or public programs or organizations with expertise in
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1 maternal and infant health care; multidisciplinary child
2 protection teams; child day care centers; and law enforcement
3 agencies, and the circuit courts, when guardian ad litem
4 programs are not available in the local area. The state plan
5 to be provided to the Legislature and the Governor shall
6 include, as a minimum, the information required of the various
7 groups in paragraph (b).
8 Section 16. Subsection (51) of section 39.01, Florida
9 Statutes, is amended to read:
10 39.01 Definitions.--When used in this chapter, unless
11 the context otherwise requires:
12 (51) "Party" means the parent or parents of the child,
13 the petitioner, the department, the guardian ad litem as
14 defined in s. 39.820 or the representative of the guardian ad
15 litem program when the program has been appointed, and the
16 child. While the child is a party, he or she may file
17 documents in a proceeding under this chapter only through a
18 court-appointed attorney or guardian ad litem. If information
19 or notice must be provided to a party, service shall be made
20 as provided in s. 39.502. The child has the right to attend
21 court proceedings, but it is not mandatory for the child to do
22 so unless the court finds that the appearance in court would
23 be in the best interest of the child. The presence of the
24 child may be excused by order of the court when presence would
25 not be in the child's best interest. Notice to the child and
26 the presence of the child may be excused by order of the court
27 when the age, capacity, or other condition of the child is
28 such that the notice or the presence of the child would be
29 meaningless, physically dangerous, or emotionally detrimental
30 to the child.
31
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1 Section 17. Present subsections (9), (10), and (11) of
2 section 39.013, Florida Statutes, are redesignated as
3 subsections (10), (11) and (12), respectively, and a new
4 subsection (9) is added to that section to read:
5 39.013 Procedures and jurisdiction; right to
6 counsel.--
7 (9) A child is entitled to representation at each
8 stage of the proceedings under this chapter, and, for each
9 child, the court shall appoint either a guardian ad litem
10 under s. 39.822 to provide representation in accordance with
11 s. 39.8225 or appoint any attorney under s. 39.8226.
12 Section 18. Paragraph (d) of subsection (2) and
13 subsection (5) of section 39.202, Florida Statutes, are
14 amended to read:
15 39.202 Confidentiality of reports and records in cases
16 of child abuse or neglect.--
17 (2) Access to such records, excluding the name of the
18 reporter which shall be released only as provided in
19 subsection (4), shall be granted only to the following
20 persons, officials, and agencies:
21 (d) The parent or legal custodian of any child who is
22 alleged to have been abused, abandoned, or neglected, and the
23 child, the guardian ad litem, and their attorneys. This access
24 shall be made available no later than 30 days after the
25 department receives the initial report of abuse, neglect, or
26 abandonment. However, any information otherwise made
27 confidential or exempt by law shall not be released pursuant
28 to this paragraph.
29 (5) All records and reports of the child protection
30 team of the Department of Health are confidential and exempt
31 from the provisions of ss. 119.07(1) and 456.057, and shall
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1 not be disclosed, except, upon request, to the state
2 attorney;, law enforcement agencies;, the department;, and
3 necessary professionals, in furtherance of the treatment or
4 additional evaluative needs of the child; for proceedings
5 under this chapter, the guardian ad litem or the attorney for
6 the child; by order of the court;, or to health plan payors,
7 limited to that information used for insurance reimbursement
8 purposes.
9 Section 19. Present subsections (4), (5), and (6) of
10 section 39.302, Florida Statutes, are redesignated as
11 subsections (5), (6), and (7), respectively, and a new
12 subsection (4) is added to that section to read:
13 39.302 Protective investigations of institutional
14 child abuse, abandonment, or neglect.--
15 (4) Upon receipt of a report of institutional child
16 abuse, abandonment, or neglect as provided in subsection (1)
17 the department shall, within 24 hours, notify the guardian ad
18 litem or legal counsel for any child alleged to be abused,
19 abandoned, or neglected. Copies of the child-protective
20 investigation shall be provided to the guardian ad litem or
21 attorney immediately upon completion.
22 Section 20. Section 39.305, Florida Statutes, is
23 amended to read:
24 39.305 Intervention and treatment in sexual abuse
25 cases; model plan.--The department shall develop a model plan
26 for community intervention and treatment of intrafamily sexual
27 abuse in conjunction with the Department of Law Enforcement,
28 the Department of Health, the Department of Education, the
29 Attorney General, the Statewide Public Guardianship and
30 Children's Representation Office the state Guardian Ad Litem
31 Program, the Department of Corrections, representatives of the
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1 judiciary, and professionals and advocates from the mental
2 health and child welfare community.
3 Section 21. Subsection (5) and paragraphs (b), (c),
4 and (e) of subsection (8) of section 39.402, Florida Statutes,
5 are amended to read:
6 39.402 Placement in a shelter.--
7 (5)(a) The parents or legal custodians of the child,
8 the child, and either the child's guardian ad litem, if known,
9 or the Circuit Office of Children's Representation shall be
10 given such notice as best ensures their actual knowledge of
11 the date, time, and location of the shelter hearing. If the
12 parents or legal custodians are outside the jurisdiction of
13 the court, are not known, or cannot be located or refuse or
14 evade service, they shall be given such notice as best ensures
15 their actual knowledge of the date, time, and location of the
16 shelter hearing. The person providing or attempting to
17 provide notice under this paragraph to the parents or legal
18 custodians shall, if the persons or entities to be provided
19 notice parents or legal custodians are not present at the
20 hearing, advise the court either in person or by sworn
21 affidavit, of the attempts made to provide notice and the
22 results of those attempts.
23 (b) The parents or legal custodians, the child, and
24 either the child's guardian ad litem, if known, or the Circuit
25 Office of Children's Representation shall be given written
26 notice that:
27 1. They will be given an opportunity to be heard and
28 to present evidence at the shelter hearing; and
29 2. The parents They have the right to be represented
30 by counsel and the child has the right to counsel as provided
31 in s. 39.013., and,
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1 a. If indigent, the parents have the right to be
2 represented by appointed counsel, at the shelter hearing and
3 at each subsequent hearing or proceeding, pursuant to the
4 procedures set forth in s. 39.013.
5 b. If the parents or legal custodians appear for the
6 shelter hearing without legal counsel, then, at their request,
7 the shelter hearing may be continued up to 72 hours to enable
8 the parents or legal custodians to consult legal counsel.
9 c. If the child appears for the shelter hearing
10 without a guardian ad litem, legal counsel, or representation
11 by the Circuit Office of Children's Representation, the
12 shelter hearing may be continued up to 72 hours to enable
13 representation to be retained on behalf of the child.
14 d. If a continuance is requested by the parents or
15 legal custodians, or on behalf of the child, the child shall
16 be continued in shelter care for the length of the
17 continuance, if granted by the court.
18 (8)
19 (b) The parents or legal custodians of the child, the
20 child, and either the child's guardian ad litem, if known, or
21 the Circuit Office of Children's Representation shall be given
22 such notice as best ensures their actual knowledge of the time
23 and place of the shelter hearing. The failure to provide
24 notice to a party or participant does not invalidate an order
25 placing a child in a shelter if the court finds that the
26 petitioner has made a good faith effort to provide such
27 notice. The court shall require the parents or legal
28 custodians present at the hearing to provide to the court on
29 the record the names, addresses, and relationships of all
30 parents, prospective parents, and next of kin of the child, so
31 far as are known.
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1 (c) At the shelter hearing, the court shall:
2 1. Appoint representation for the child in accordance
3 with s. 39.013 a guardian ad litem to represent the best
4 interest of the child, unless the court finds that such
5 representation of the child is otherwise provided is
6 unnecessary;
7 2. Inform the parents or legal custodians of their
8 right to counsel to represent them at the shelter hearing and
9 at each subsequent hearing or proceeding, and the right of the
10 parents to appointed counsel, pursuant to the procedures set
11 forth in s. 39.013; and
12 3. Give the parents or legal custodians an opportunity
13 to be heard and to present evidence.
14 (e) At the shelter hearing, the department shall
15 provide the court and the child and either the child's
16 guardian ad litem, if known, or the Circuit Office of
17 Children's Representation copies of any available law
18 enforcement, medical, or other professional reports, and shall
19 also provide copies of abuse hotline reports pursuant to state
20 and federal confidentiality requirements.
21 Section 22. Subsection (5) of section 39.407, Florida
22 Statutes, is amended to read:
23 39.407 Medical, psychiatric, and psychological
24 examination and treatment of child; physical or mental
25 examination of parent or person requesting custody of child.--
26 (5) Children who are in the legal custody of the
27 department may be placed by the department in a residential
28 treatment center licensed under s. 394.875 or a hospital
29 licensed under chapter 395 for residential mental health
30 treatment only pursuant to this section or may be placed by
31 the court in accordance with an order of involuntary
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1 examination or involuntary placement entered pursuant to s.
2 394.463 or s. 394.467. All children placed in a residential
3 treatment program under this subsection must have a guardian
4 ad litem or legal counsel appointed.
5 (a) As used in this subsection, the term:
6 1. "Residential treatment" means placement for
7 observation, diagnosis, or treatment of an emotional
8 disturbance in a residential treatment center licensed under
9 s. 394.875 or a hospital licensed under chapter 395.
10 2. "Least restrictive alternative" means the treatment
11 and conditions of treatment that, separately and in
12 combination, are no more intrusive or restrictive of freedom
13 than reasonably necessary to achieve a substantial therapeutic
14 benefit or to protect the child or adolescent or others from
15 physical injury.
16 3. "Suitable for residential treatment" or
17 "suitability" means a determination concerning a child or
18 adolescent with an emotional disturbance as defined in s.
19 394.492(5) or a serious emotional disturbance as defined in s.
20 394.492(6) that each of the following criteria is met:
21 a. The child requires residential treatment.
22 b. The child is in need of a residential treatment
23 program and is expected to benefit from mental health
24 treatment.
25 c. An appropriate, less restrictive alternative to
26 residential treatment is unavailable.
27 (b) Whenever the department believes that a child in
28 its legal custody is emotionally disturbed and may need
29 residential treatment, an examination and suitability
30 assessment must be conducted by a qualified evaluator who is
31 appointed by the Agency for Health Care Administration. This
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1 suitability assessment must be completed before the placement
2 of the child in a residential treatment center for emotionally
3 disturbed children and adolescents or a hospital. The
4 qualified evaluator must be a psychiatrist or a psychologist
5 licensed in Florida who has at least 3 years of experience in
6 the diagnosis and treatment of serious emotional disturbances
7 in children and adolescents and who has no actual or perceived
8 conflict of interest with any inpatient facility or
9 residential treatment center or program.
10 (c) Before a child is admitted under this subsection,
11 the child shall be assessed for suitability for residential
12 treatment by a qualified evaluator who has conducted a
13 personal examination and assessment of the child and has made
14 written findings that:
15 1. The child appears to have an emotional disturbance
16 serious enough to require residential treatment and is
17 reasonably likely to benefit from the treatment.
18 2. The child has been provided with a clinically
19 appropriate explanation of the nature and purpose of the
20 treatment.
21 3. All available modalities of treatment less
22 restrictive than residential treatment have been considered,
23 and a less restrictive alternative that would offer comparable
24 benefits to the child is unavailable.
25
26 A copy of the written findings of the evaluation and
27 suitability assessment must be provided to the department and
28 to the guardian ad litem or legal counsel, who shall have the
29 opportunity to discuss the findings with the evaluator.
30 (d) Immediately upon placing a child in a residential
31 treatment program under this section, the department must
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1 notify the guardian ad litem or legal counsel and the court
2 having jurisdiction over the child and must provide the
3 guardian ad litem or legal counsel and the court with a copy
4 of the assessment by the qualified evaluator.
5 (e) Within 10 days after the admission of a child to a
6 residential treatment program, the director of the residential
7 treatment program or the director's designee must ensure that
8 an individualized plan of treatment has been prepared by the
9 program and has been explained to the child, to the
10 department, and to the guardian ad litem or legal counsel, and
11 submitted to the department. The child must be involved in the
12 preparation of the plan to the maximum feasible extent
13 consistent with his or her ability to understand and
14 participate, and the guardian ad litem or legal counsel and
15 the child's foster parents must be involved to the maximum
16 extent consistent with the child's treatment needs. The plan
17 must include a preliminary plan for residential treatment and
18 aftercare upon completion of residential treatment. The plan
19 must include specific behavioral and emotional goals against
20 which the success of the residential treatment may be
21 measured. A copy of the plan must be provided to the child, to
22 the guardian ad litem or legal counsel, and to the department.
23 (f) Within 30 days after admission, the residential
24 treatment program must review the appropriateness and
25 suitability of the child's placement in the program. The
26 residential treatment program must determine whether the child
27 is receiving benefit towards the treatment goals and whether
28 the child could be treated in a less restrictive treatment
29 program. The residential treatment program shall prepare a
30 written report of its findings and submit the report to the
31 guardian ad litem or legal counsel and to the department. The
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1 department must submit the report to the court. The report
2 must include a discharge plan for the child. The residential
3 treatment program must continue to evaluate the child's
4 treatment progress every 30 days thereafter and must include
5 its findings in a written report submitted to the guardian ad
6 litem or legal counsel and the department. The department may
7 not reimburse a facility until the facility has submitted
8 every written report that is due.
9 (g)1. The department must submit, at the beginning of
10 each month, to the court having jurisdiction over the child
11 and to the guardian ad litem or legal counsel, a written
12 report regarding the child's progress towards achieving the
13 goals specified in the individualized plan of treatment.
14 2. The court must conduct a hearing to review the
15 status of the child's residential treatment plan no later than
16 3 months after the child's admission to the residential
17 treatment program. An independent review of the child's
18 progress towards achieving the goals and objectives of the
19 treatment plan must be completed by a qualified evaluator and
20 submitted to the court and to the guardian ad litem or legal
21 counsel before the court's its 3-month review.
22 3. For any child in residential treatment at the time
23 a judicial review is held pursuant to s. 39.701, the child's
24 continued placement in residential treatment must be a subject
25 of the judicial review.
26 4. If at any time the court determines that the child
27 is not suitable for continued residential treatment, the court
28 shall order the department to place the child in the least
29 restrictive setting that is best suited to meet his or her
30 needs.
31
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1 (h) After the initial 3-month review, the court must
2 conduct a review of the child's residential treatment plan
3 every 90 days.
4 (i) The department must adopt rules for implementing
5 timeframes for the completion of suitability assessments by
6 qualified evaluators and a procedure that includes timeframes
7 for completing the 3-month independent review by the qualified
8 evaluators of the child's progress towards achieving the goals
9 and objectives of the treatment plan which review must be
10 submitted to the court. The Agency for Health Care
11 Administration must adopt rules for the registration of
12 qualified evaluators, the procedure for selecting the
13 evaluators to conduct the reviews required under this section,
14 and a reasonable, cost-efficient fee schedule for qualified
15 evaluators.
16 Section 23. Subsections (11), (12), (19), (20), and
17 (21) of section 39.4085, Florida Statutes, are amended to
18 read:
19 39.4085 Legislative findings and declaration of intent
20 for goals for dependent children.--The Legislature finds and
21 declares that the design and delivery of child welfare
22 services should be directed by the principle that the health
23 and safety of children should be of paramount concern and,
24 therefore, establishes the following goals for children in
25 shelter or foster care:
26 (11) To be the subject of a plan developed by the
27 counselor and the shelter or foster caregiver with the child,
28 when the child is of an age or capacity to participate, and
29 the child's guardian ad litem and with their legal counsel to
30 deal with identified behaviors that may present a risk to the
31 child or others.
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1 (12) To be involved and incorporated, where
2 appropriate, and to have the child's guardian ad litem and the
3 legal counsel of the child and of the guardian ad litem
4 involved in the development of the case plan, to have a case
5 plan which will address their specific needs, and to object to
6 any of the provisions of the case plan.
7 (19) To be heard by the court, if appropriate, at all
8 review hearings, unless the child chooses not to be heard or
9 because of age, capacity, or other condition of the child, the
10 court determines it would be meaningless, physically
11 dangerous, or emotionally detrimental to the child.
12 (20) To have a guardian ad litem appointed to
13 represent, within reason, their best interests and, as
14 provided in s. 39.8226 where appropriate, legal counsel an
15 attorney ad litem appointed to represent their expressed legal
16 interests; the guardian ad litem and legal counsel attorney ad
17 litem shall have immediate and unlimited access to the
18 children they represent.
19 (21) To have all their records available for review by
20 their guardian ad litem and legal counsel attorney ad litem if
21 they deem such review necessary.
22 Section 24. Section 39.4086, Florida Statutes, is
23 repealed.
24 Section 25. Section 39.502, Florida Statutes, is
25 amended to read:
26 39.502 Notice, process, and service.--
27 (1) Unless parental rights have been terminated, all
28 parents must be notified of all proceedings or hearings
29 involving the child. Notice in cases involving shelter
30 hearings and hearings resulting from medical emergencies must
31 be that most likely to result in actual notice to the parents.
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1 In all other dependency proceedings, notice must be provided
2 in accordance with subsections (5)-(10) (4)-(9).
3 (2) Notice of all proceedings or hearings involving
4 the child and all documents and reports related to those
5 proceedings or required to be given to the child shall be
6 served on or delivered to the child through the court
7 appointed representative for the child, either the guardian ad
8 litem or the child's or the guardian ad litem's legal counsel.
9 If the court has not appointed a representative for the child,
10 service or delivery shall be made to the child unless the
11 court determines that, because of age, capacity, or other
12 condition of the child, it would be meaningless or emotionally
13 detrimental to the child.
14 (3)(2) Personal appearance of any person in a hearing
15 before the court obviates the necessity of serving process on
16 that person.
17 (4)(3) Upon the filing of a petition containing
18 allegations of facts which, if true, would establish that the
19 child is a dependent child, and upon the request of the
20 petitioner, the clerk or deputy clerk shall issue a summons.
21 (5)(4) The summons shall require the person on whom it
22 is served to appear for a hearing at a time and place
23 specified, not less than 72 hours after service of the
24 summons. A copy of the petition shall be attached to the
25 summons.
26 (6)(5) The summons shall be directed to, and shall be
27 served upon, all parties other than the petitioner.
28 (7)(6) It is the duty of the petitioner or moving
29 party to notify all participants and parties known to the
30 petitioner or moving party of all hearings subsequent to the
31 initial hearing unless notice is contained in prior court
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1 orders and these orders were provided to the participant or
2 party. Proof of notice or provision of orders may be provided
3 by certified mail with a signed return receipt.
4 (8)(7) Service of the summons and service of
5 pleadings, papers, and notices subsequent to the summons on
6 persons outside this state must be made pursuant to s.
7 61.1312.
8 (9)(8) It is not necessary to the validity of a
9 proceeding covered by this part that the parents be present if
10 their identity or residence is unknown after a diligent search
11 has been made, but in this event the petitioner shall file an
12 affidavit of diligent search prepared by the person who made
13 the search and inquiry, and the court shall may appoint a
14 guardian ad litem or legal counsel for the child.
15 (10)(9) When an affidavit of diligent search has been
16 filed under subsection (8), the petitioner shall continue to
17 search for and attempt to serve the person sought until
18 excused from further search by the court. The petitioner shall
19 report on the results of the search at each court hearing
20 until the person is identified or located or further search is
21 excused by the court.
22 (11)(10) Service by publication shall not be required
23 for dependency hearings and the failure to serve a party or
24 give notice to a participant shall not affect the validity of
25 an order of adjudication or disposition if the court finds
26 that the petitioner has completed a diligent search for that
27 party.
28 (12)(11) Upon the application of a party or the
29 petitioner, the clerk or deputy clerk shall issue, and the
30 court on its own motion may issue, subpoenas requiring
31
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1 attendance and testimony of witnesses and production of
2 records, documents, and other tangible objects at any hearing.
3 (13)(12) All process and orders issued by the court
4 shall be served or executed as other process and orders of the
5 circuit court and, in addition, may be served or executed by
6 authorized agents of the department, or the guardian ad litem,
7 or legal counsel for the child.
8 (14)(13) Subpoenas may be served within the state by
9 any person over 18 years of age who is not a party to the
10 proceeding and, in addition, may be served by authorized
11 agents of the department, or the guardian ad litem, or legal
12 counsel for the child.
13 (15)(14) No fee shall be paid for service of any
14 process or other papers by an agent of the department, or the
15 guardian ad litem, or legal counsel for the child. If any
16 process, orders, or any other papers are served or executed by
17 any sheriff, the sheriff's fees shall be paid by the county.
18 (16)(15) A party who is identified as a person with
19 mental illness or with a developmental disability must be
20 informed by the court of the availability of advocacy services
21 through the department, the Association for Retarded Citizens,
22 or other appropriate mental health or developmental disability
23 advocacy groups and encouraged to seek such services.
24 (17)(16) If the party to whom an order is directed is
25 present or represented at the final hearing, service of the
26 order is not required.
27 (18)(17) The parent or legal custodian of the child,
28 the attorney for the department, the guardian ad litem, the
29 child, and all other parties and participants shall be given
30 reasonable notice of all hearings provided for under this
31 part.
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1 (19)(18) In all proceedings under this part, the court
2 shall provide to the parent or legal custodian of the child,
3 the child, and the child's guardian ad litem, at the
4 conclusion of any hearing, a written notice containing the
5 date of the next scheduled hearing. The court shall also
6 include the date of the next hearing in any order issued by
7 the court.
8 Section 26. Subsections (1) and (4) of section 39.504,
9 Florida Statutes, are amended to read:
10 39.504 Injunction pending disposition of petition;
11 penalty.--
12 (1)(a) When a petition for shelter placement or a
13 petition for dependency has been filed or when a child has
14 been taken into custody and reasonable cause, as defined in
15 paragraph (b), exists, the court, upon the request of the
16 department, a law enforcement officer, the state attorney, the
17 child through the guardian ad litem or legal counsel, or other
18 responsible person, or upon its own motion, may shall have the
19 authority to issue an injunction to prevent any act of child
20 abuse or any unlawful sexual offense involving a child.
21 (b) Reasonable cause for the issuance of an injunction
22 exists if there is evidence of child abuse or an unlawful
23 sexual offense involving a child or if there is a reasonable
24 likelihood of such abuse or offense occurring based upon a
25 recent overt act or failure to act.
26 (4) A copy of any injunction issued pursuant to this
27 section shall be delivered to the protected party, or a parent
28 or caregiver or individual acting in the place of a parent who
29 is not the respondent, the guardian ad litem, and to any law
30 enforcement agency having jurisdiction to enforce such
31 injunction. Upon delivery of the injunction to the appropriate
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1 law enforcement agency, the agency shall have the duty and
2 responsibility to enforce the injunction.
3 Section 27. Section 39.505, Florida Statutes, is
4 amended to read:
5 39.505 No answer required.--No answer to the petition
6 or any other pleading need be filed by any child, guardian ad
7 litem, parent, or legal custodian, but any matters that which
8 might be set forth in an answer or other pleading may be
9 pleaded orally before the court or filed in writing as any
10 such person may choose. Notwithstanding the filing of an
11 answer or any pleading, the respondent shall, prior to an
12 adjudicatory hearing, be advised by the court of the right to
13 counsel and shall be given an opportunity to deny the
14 allegations in the petition for dependency or to enter a plea
15 to allegations in the petition before the court.
16 Section 28. Subsection (1) of section 39.510, Florida
17 Statutes, is amended to read:
18 39.510 Appeal.--
19 (1) Any party to the proceeding who is affected by an
20 order of the court, who represents a party affected by an
21 order of the court, or the department may appeal to the
22 appropriate district court of appeal within the time and in
23 the manner prescribed by the Florida Rules of Appellate
24 Procedure. Appointed counsel shall be compensated as provided
25 in this chapter.
26 Section 29. Paragraphs (a) and (d) of subsection (1),
27 paragraph (b) of subsection (5), and subsection (8) of section
28 39.521, Florida Statutes, are amended to read:
29 39.521 Disposition hearings; powers of disposition.--
30 (1) A disposition hearing shall be conducted by the
31 court, if the court finds that the facts alleged in the
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1 petition for dependency were proven in the adjudicatory
2 hearing, or if the parents or legal custodians have consented
3 to the finding of dependency or admitted the allegations in
4 the petition, have failed to appear for the arraignment
5 hearing after proper notice, or have not been located despite
6 a diligent search having been conducted.
7 (a) A written case plan and a predisposition study
8 prepared by an authorized agent of the department must be
9 filed with the court and served upon the parents of the child,
10 provided to the child, representative of the guardian ad litem
11 program, if the program has been appointed, and provided to
12 all other parties, not less than 72 hours before the
13 disposition hearing. All such case plans must be approved by
14 the court. If the court does not approve the case plan at the
15 disposition hearing, the court must set a hearing within 30
16 days after the disposition hearing to review and approve the
17 case plan.
18 (d) The court shall, in its written order of
19 disposition, include all of the following:
20 1. The placement or custody of the child.
21 2. Special conditions of placement and visitation.
22 3. Evaluation, counseling, treatment activities, and
23 other actions to be taken by the parties, if ordered.
24 4. The persons or entities responsible for supervising
25 or monitoring services to the child and parent.
26 5. Continuation or discharge of the guardian ad litem
27 or legal counsel for the child, as appropriate. The guardian
28 ad litem or legal counsel for the child may not be discharged
29 pursuant to this section before termination of supervision by
30 the department unless other legal representation is provided
31 for the child. The court may approve a request to withdraw
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1 from a Circuit Office of Children's Representation when the
2 court finds that the child no longer needs active
3 representation and the resources of the office are
4 insufficient to provide appropriate representation in other
5 pending cases.
6 6. The date, time, and location of the next scheduled
7 review hearing, which must occur within the earlier of:
8 a. Ninety days after the disposition hearing;
9 b. Ninety days after the court accepts the case plan;
10 c. Six months after the date of the last review
11 hearing; or
12 d. Six months after the date of the child's removal
13 from his or her home, if no review hearing has been held since
14 the child's removal from the home.
15 7. If the child is in an out-of-home placement, child
16 support to be paid by the parents, or the guardian of the
17 child's estate if possessed of assets which under law may be
18 disbursed for the care, support, and maintenance of the child.
19 The court may exercise jurisdiction over all child support
20 matters, shall adjudicate the financial obligation, including
21 health insurance, of the child's parents or guardian, and
22 shall enforce the financial obligation as provided in chapter
23 61. The state's child support enforcement agency shall enforce
24 child support orders under this section in the same manner as
25 child support orders under chapter 61. Placement of the child
26 shall not be contingent upon issuance of a support order.
27 8.a. If the court does not commit the child to the
28 temporary legal custody of an adult relative, legal custodian,
29 or other adult approved by the court, the disposition order
30 shall include the reasons for such a decision and shall
31 include a determination as to whether diligent efforts were
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1 made by the department to locate an adult relative, legal
2 custodian, or other adult willing to care for the child in
3 order to present that placement option to the court instead of
4 placement with the department.
5 b. If diligent efforts are made to locate an adult
6 relative willing and able to care for the child but, because
7 no suitable relative is found, the child is placed with the
8 department or a legal custodian or other adult approved by the
9 court, both the department and the court shall consider
10 transferring temporary legal custody to an adult relative
11 approved by the court at a later date, but neither the
12 department nor the court is obligated to so place the child if
13 it is in the child's best interest to remain in the current
14 placement.
15
16 For the purposes of this subparagraph, "diligent efforts to
17 locate an adult relative" means a search similar to the
18 diligent search for a parent, but without the continuing
19 obligation to search after an initial adequate search is
20 completed.
21 9. Other requirements necessary to protect the health,
22 safety, and well-being of the child, to preserve the stability
23 of the child's educational placement, and to promote family
24 preservation or reunification whenever possible.
25 (5)
26 (b) The results of the assessment described in
27 paragraph (a) and the actions taken as a result of the
28 assessment must be included in the next judicial review of the
29 child. At each subsequent judicial review, the court must be
30 advised in writing of the status of the child's placement,
31 with special reference regarding the stability of the
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1 placement and the permanency planning for the child. A copy of
2 this report must be provided to the child and the child's
3 guardian ad litem prior to the judicial review.
4 (8) The court may enter an order ending its
5 jurisdiction over a child when a child has been returned to
6 the parents, except that provided the court may shall not
7 terminate its jurisdiction or the department's supervision
8 over the child until 6 months after the child's return. The
9 court shall determine whether its jurisdiction should be
10 continued or terminated in such a case after consideration of
11 based on a report of the department or agency, report of or
12 the child's guardian ad litem, or any testimony of the child,
13 and any other relevant factors; if its jurisdiction is to be
14 terminated, the court shall enter an order to that effect.
15 Section 30. Paragraph (a) of subsection (2), paragraph
16 (d) of subsection (5), paragraphs (b) and (c) of subsection
17 (6), subsection (7), and paragraphs (a) and (d) of subsection
18 (8) of section 39.701, Florida Statutes, are amended to read:
19 39.701 Judicial review.--
20 (2)(a) The court shall review the status of the child
21 and shall hold a hearing as provided in this part at least
22 every 6 months until the child reaches permanency status. The
23 court may dispense with the attendance of the child at the
24 hearing upon the child's request or when, based on the child's
25 age, capacity, or other condition, the court determines that
26 the child's attendance would be meaningless, physically
27 dangerous, or emotionally detrimental to the child. The court,
28 but may not dispense with the hearing or the presence of other
29 parties to the review unless before the review a hearing is
30 held before a citizen review panel.
31
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1 (5) Notice of a judicial review hearing or a citizen
2 review panel hearing, and a copy of the motion for judicial
3 review, if any, must be served by the clerk of the court upon:
4 (d) The child and guardian ad litem for the child, or
5 the representative of the guardian ad litem program if the
6 program has been appointed.
7
8 Service of notice is not required on any of the persons listed
9 in paragraphs (a)-(f) if the person was present at the
10 previous hearing during which the date, time, and location of
11 the hearing was announced.
12 (6)
13 (b) A copy of the social service agency's written
14 report and any the written report of the guardian ad litem
15 must be served on all parties whose whereabouts are known; to
16 the foster parents or legal custodians; to the child and the
17 guardian ad litem, unless the guardian ad litem prepared the
18 report; and to the citizen review panel, at least 72 hours
19 before the judicial review hearing or citizen review panel
20 hearing. The requirement for providing parents with a copy of
21 the written report does not apply to those parents who have
22 voluntarily surrendered their child for adoption or who have
23 had their parental rights to the child terminated.
24 (c) In a case in which the child has been permanently
25 placed with the social service agency, the agency shall
26 furnish to the court a written report concerning the progress
27 being made to place the child for adoption. If the child
28 cannot be placed for adoption, a report on the progress made
29 by the child towards alternative permanency goals or
30 placements, including, but not limited to, guardianship,
31 long-term custody, long-term licensed custody, or independent
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1 living, must be submitted to the court. The report must be
2 submitted to the court and all parties as provided in
3 paragraph (b) at least 72 hours before each scheduled judicial
4 review.
5 (7) The court and any citizen review panel shall take
6 into consideration the information contained in the social
7 services study and investigation and all medical,
8 psychological, and educational records that support the terms
9 of the case plan; testimony by the social services agency, the
10 parent, the foster parent or legal custodian, the child, the
11 guardian ad litem if one has been appointed for the child, and
12 any other person deemed appropriate; and any relevant and
13 material evidence submitted to the court, including written
14 and oral reports to the extent of their probative value. These
15 reports and evidence may be received by the court in its
16 effort to determine the action to be taken with regard to the
17 child and may be relied upon to the extent of their probative
18 value, even though not competent in an adjudicatory hearing.
19 In its deliberations, the court and any citizen review panel
20 shall seek to determine:
21 (a) If the parent was advised of the right to receive
22 assistance from any person or social service agency in the
23 preparation of the case plan.
24 (b) If the parent has been advised of the right to
25 have counsel present at the judicial review or citizen review
26 hearings. If not so advised, the court or citizen review panel
27 shall advise the parent of such right.
28 (c) If a guardian ad litem needs to be appointed for
29 the child in a case in which a guardian ad litem has not
30 previously been appointed or if there is a need to continue a
31
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1 guardian ad litem in a case in which a guardian ad litem has
2 been appointed.
3 (c)(d) The compliance or lack of compliance of all
4 parties with applicable items of the case plan, including the
5 parents' compliance with child support orders.
6 (d)(e) The compliance or lack of compliance with a
7 visitation contract between the parent and the social service
8 agency for contact with the child, including the frequency,
9 duration, and results of the parent-child visitation and the
10 reason for any noncompliance.
11 (e)(f) The compliance or lack of compliance of the
12 parent in meeting specified financial obligations pertaining
13 to the care of the child, including the reason for failure to
14 comply if such is the case.
15 (f)(g) The appropriateness of the child's current
16 placement, including whether the child is in a setting which
17 is as family-like and as close to the parent's home as
18 possible, consistent with the child's best interests and
19 special needs, and including maintaining stability in the
20 child's educational placement.
21 (g)(h) A projected date likely for the child's return
22 home or other permanent placement.
23 (h)(i) When appropriate, the basis for the
24 unwillingness or inability of the parent to become a party to
25 a case plan. The court and the citizen review panel shall
26 determine if the efforts of the social service agency to
27 secure party participation in a case plan were sufficient.
28 (8)(a) Based upon the criteria set forth in subsection
29 (7) and the recommended order of the citizen review panel, if
30 any, the court shall determine whether or not the social
31 service agency shall initiate proceedings to have a child
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1 declared a dependent child, return the child to the parent,
2 continue the child in out-of-home care for a specified period
3 of time, or initiate termination of parental rights
4 proceedings for subsequent placement in an adoptive home. The
5 court must determine whether a guardian ad litem or legal
6 counsel needs to be appointed for the child in a case in which
7 a guardian ad litem or legal counsel has not previously been
8 appointed or when there is a need to continue a guardian ad
9 litem or legal counsel in a case in which a guardian ad litem
10 or legal counsel has been appointed. Modifications to the plan
11 must be handled as prescribed in s. 39.601. If the court finds
12 that the prevention or reunification efforts of the department
13 will allow the child to remain safely at home or be safely
14 returned to the home, the court shall allow the child to
15 remain in or return to the home after making a specific
16 finding of fact that the reasons for the creation of the case
17 plan have been remedied to the extent that the child's safety,
18 well-being, and physical, mental, and emotional health will
19 not be endangered.
20 (d) The court may extend the time limitation of the
21 case plan, or may modify the terms of the plan, based upon
22 information provided by the social service agency, the child,
23 and the guardian ad litem, if one has been appointed, the
24 parent or parents, and the foster parents or legal custodian,
25 and any other competent information on record demonstrating
26 the need for the amendment. If the court extends the time
27 limitation of the case plan, the court must make specific
28 findings concerning the frequency of past parent-child
29 visitation, if any, and the court may authorize the expansion
30 or restriction of future visitation. Modifications to the plan
31 must be handled as prescribed in s. 39.601. Any extension of a
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1 case plan must comply with the time requirements and other
2 requirements specified by this chapter.
3 Section 31. Paragraph (a) of subsection (3) and
4 subsections (5) and (7) of section 39.801, Florida Statutes,
5 are amended to read:
6 39.801 Procedures and jurisdiction; notice; service of
7 process.--
8 (3) Before the court may terminate parental rights, in
9 addition to the other requirements set forth in this part, the
10 following requirements must be met:
11 (a) Notice of the date, time, and place of the
12 advisory hearing for the petition to terminate parental rights
13 and a copy of the petition must be personally served upon the
14 following persons, specifically notifying them that a petition
15 has been filed:
16 1. The parents of the child.
17 2. The legal custodians of the child.
18 3. If the parents who would be entitled to notice are
19 dead or unknown, a living relative of the child, unless upon
20 diligent search and inquiry no such relative can be found.
21 4. Any person who has physical custody of the child.
22 5. Any grandparent entitled to priority for adoption
23 under s. 63.0425.
24 6. Any prospective parent who has been identified
25 under s. 39.503 or s. 39.803.
26 7. The child and the guardian ad litem for the child
27 or the representative of the guardian ad litem program, if the
28 program has been appointed.
29
30 The document containing the notice to respond or appear must
31 contain, in type at least as large as the type in the balance
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1 of the document, the following or substantially similar
2 language: "FAILURE TO PERSONALLY APPEAR AT THIS ADVISORY
3 HEARING CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL
4 RIGHTS OF THIS CHILD (OR CHILDREN). IF YOU FAIL TO APPEAR ON
5 THE DATE AND TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS
6 A PARENT TO THE CHILD OR CHILDREN NAMED IN THE PETITION
7 ATTACHED TO THIS NOTICE."
8 (5) All process and orders issued by the court must be
9 served or executed as other process and orders of the circuit
10 court and, in addition, may be served or executed by
11 authorized agents of the department, or the guardian ad litem,
12 or the child.
13 (7) A fee may not be paid for service of any process
14 or other papers by an agent of the department, or the guardian
15 ad litem, or the child's legal counsel. If any process,
16 orders, or other papers are served or executed by any sheriff,
17 the sheriff's fees must be paid by the county.
18 Section 32. Subsection (1) of section 39.802, Florida
19 Statutes, is amended to read:
20 39.802 Petition for termination of parental rights;
21 filing; elements.--
22 (1) All proceedings seeking an adjudication to
23 terminate parental rights pursuant to this chapter must be
24 initiated by the filing of an original petition by the
25 department, the child through legal counsel appointed pursuant
26 to s. 39.8226, the guardian ad litem, or any other person who
27 has knowledge of the facts alleged or is informed of them and
28 believes that they are true.
29 Section 33. Section 39.805, Florida Statutes, is
30 amended to read:
31
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1 39.805 No answer required.--No answer to the petition
2 or any other pleading need be filed by any child, guardian ad
3 litem, or parent, but any matters that which might be set
4 forth in an answer or other pleading may be pleaded orally
5 before the court or filed in writing as any such person may
6 choose. Notwithstanding the filing of any answer or any
7 pleading, the child or parent shall, prior to the adjudicatory
8 hearing, be advised by the court of the right to counsel and
9 shall be given an opportunity to deny the allegations in the
10 petition for termination of parental rights or to enter a plea
11 to allegations in the petition before the court.
12 Section 34. Subsection (1) of section 39.806, Florida
13 Statutes, is amended to read:
14 39.806 Grounds for termination of parental rights.--
15 (1) The department, the child through legal counsel
16 appointed pursuant to s. 39.8226, the guardian ad litem, or
17 any person who has knowledge of the facts alleged or who is
18 informed of those facts and believes that they are true may
19 petition for the termination of parental rights under any of
20 the following circumstances:
21 (a) When the parent or parents have voluntarily
22 executed a written surrender of the child and consented to the
23 entry of an order giving custody of the child to the
24 department for subsequent adoption and the department is
25 willing to accept custody of the child.
26 1. The surrender document must be executed before two
27 witnesses and a notary public or other person authorized to
28 take acknowledgments.
29 2. The surrender and consent may be withdrawn after
30 acceptance by the department only after a finding by the court
31
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1 that the surrender and consent were obtained by fraud or under
2 duress.
3 (b) Abandonment as defined in s. 39.01(1) or when the
4 identity or location of the parent or parents is unknown and
5 cannot be ascertained by diligent search within 60 days.
6 (c) When the parent or parents engaged in conduct
7 toward the child or toward other children that demonstrates
8 that the continuing involvement of the parent or parents in
9 the parent-child relationship threatens the life, safety,
10 well-being, or physical, mental, or emotional health of the
11 child irrespective of the provision of services. Provision of
12 services may be evidenced by proof that services were provided
13 through a previous plan or offered as a case plan from a child
14 welfare agency.
15 (d) When the parent of a child is incarcerated in a
16 state or federal correctional institution and either:
17 1. The period of time for which the parent is expected
18 to be incarcerated will constitute a substantial portion of
19 the period of time before the child will attain the age of 18
20 years;
21 2. The incarcerated parent has been determined by the
22 court to be a violent career criminal as defined in s.
23 775.084, a habitual violent felony offender as defined in s.
24 775.084, or a sexual predator as defined in s. 775.21; has
25 been convicted of first degree or second degree murder in
26 violation of s. 782.04 or a sexual battery that constitutes a
27 capital, life, or first degree felony violation of s. 794.011;
28 or has been convicted of an offense in another jurisdiction
29 which is substantially similar to one of the offenses listed
30 in this paragraph. As used in this section, the term
31 "substantially similar offense" means any offense that is
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1 substantially similar in elements and penalties to one of
2 those listed in this subparagraph, and that is in violation of
3 a law of any other jurisdiction, whether that of another
4 state, the District of Columbia, the United States or any
5 possession or territory thereof, or any foreign jurisdiction;
6 or
7 3. The court determines by clear and convincing
8 evidence that continuing the parental relationship with the
9 incarcerated parent would be harmful to the child and, for
10 this reason, that termination of the parental rights of the
11 incarcerated parent is in the best interest of the child.
12 (e) A petition for termination of parental rights may
13 also be filed when a child has been adjudicated dependent, a
14 case plan has been filed with the court, and the child
15 continues to be abused, neglected, or abandoned by the
16 parents. In this case, the failure of the parents to
17 substantially comply for a period of 12 months after an
18 adjudication of the child as a dependent child or the child's
19 placement into shelter care, whichever came first, constitutes
20 evidence of continuing abuse, neglect, or abandonment unless
21 the failure to substantially comply with the case plan was due
22 either to the lack of financial resources of the parents or to
23 the failure of the department to make reasonable efforts to
24 reunify the parent and child. Such 12-month period may begin
25 to run only after the child's placement into shelter care or
26 the entry of a disposition order placing the custody of the
27 child with the department or a person other than the parent
28 and the approval by the court of a case plan with a goal of
29 reunification with the parent, whichever came first.
30 (f) When the parent or parents engaged in egregious
31 conduct or had the opportunity and capability to prevent and
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1 knowingly failed to prevent egregious conduct that threatens
2 the life, safety, or physical, mental, or emotional health of
3 the child or the child's sibling.
4 1. As used in this subsection, the term "sibling"
5 means another child who resides with or is cared for by the
6 parent or parents regardless of whether the child is related
7 legally or by consanguinity.
8 2. As used in this subsection, the term "egregious
9 conduct" means abuse, abandonment, neglect, or any other
10 conduct of the parent or parents that is deplorable, flagrant,
11 or outrageous by a normal standard of conduct. Egregious
12 conduct may include an act or omission that occurred only once
13 but was of such intensity, magnitude, or severity as to
14 endanger the life of the child.
15 (g) When the parent or parents have subjected the
16 child to aggravated child abuse as defined in s. 827.03,
17 sexual battery or sexual abuse as defined in s. 39.01, or
18 chronic abuse.
19 (h) When the parent or parents have committed murder
20 or voluntary manslaughter of another child, or a felony
21 assault that results in serious bodily injury to the child or
22 another child, or aided or abetted, attempted, conspired, or
23 solicited to commit such a murder or voluntary manslaughter or
24 felony assault.
25 (i) When the parental rights of the parent to a
26 sibling have been terminated involuntarily.
27 Section 35. Subsection (2) of section 39.807, Florida
28 Statutes, is amended to read:
29 39.807 Right to counsel; guardian ad litem.--
30 (2)(a) The court shall appoint a guardian ad litem or
31 legal counsel, or both, to represent the best interest of the
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1 child in any proceedings for termination of parental rights as
2 provided in s. 39.013 proceedings and shall ascertain at each
3 stage of the proceedings whether a guardian ad litem or legal
4 counsel has been appointed.
5 (b) The guardian ad litem has the following
6 responsibilities:
7 1. To investigate the allegations of the petition and
8 any subsequent matters arising in the case and, unless excused
9 by the court, to file a written report. This report must
10 include a statement of the wishes of the child and the
11 recommendations of the guardian ad litem and must be provided
12 to all parties and the court at least 72 hours before the
13 disposition hearing.
14 2. To be present at all court hearings unless excused
15 by the court.
16 3. To represent the best interests of the child until
17 the jurisdiction of the court over the child terminates or
18 until excused by the court.
19 (c) A guardian ad litem is not required to post bond
20 but shall file an acceptance of the office.
21 (d) A guardian ad litem is entitled to receive service
22 of pleadings and papers as provided by the Florida Rules of
23 Juvenile Procedure.
24 (b)(e) This subsection does not apply to any voluntary
25 relinquishment of parental rights proceeding.
26 Section 36. Subsection (2) of section 39.808, Florida
27 Statutes, is amended to read:
28 39.808 Advisory hearing; pretrial status conference.--
29 (2) At the hearing the court shall inform the parties
30 of their rights under s. 39.807, shall appoint counsel for the
31 parties in accordance with legal requirements, and shall
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1 appoint a guardian ad litem or legal counsel to represent the
2 interests of the child if one has not already been appointed.
3 Section 37. Subsections (10) and (11) of section
4 39.810, Florida Statutes, are amended to read:
5 39.810 Manifest best interests of the child.--In a
6 hearing on a petition for termination of parental rights, the
7 court shall consider the manifest best interests of the child.
8 This consideration shall not include a comparison between the
9 attributes of the parents and those of any persons providing a
10 present or potential placement for the child. For the purpose
11 of determining the manifest best interests of the child, the
12 court shall consider and evaluate all relevant factors,
13 including, but not limited to:
14 (10) The expressed interests reasonable preferences
15 and wishes of the child, if the court deems the child to be of
16 sufficient intelligence, understanding, and experience to
17 express a preference.
18 (11) Any information related to subsections (1)
19 through (10) which is provided by the guardian ad litem and,
20 when requested by the court, any The recommendations for the
21 child provided by the child's guardian ad litem or legal
22 representative.
23 Section 38. Subsections (1) and (9) of section 39.811,
24 Florida Statutes, are amended to read:
25 39.811 Powers of disposition; order of disposition.--
26 (1) If the court finds that the grounds for
27 termination of parental rights have not been established by
28 clear and convincing evidence, the court shall:
29 (a) If grounds for dependency have been established,
30 adjudicate or readjudicate the child dependent and:
31
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1 1. Enter an order placing or continuing the child in
2 out-of-home care under a case plan; or
3 2. Enter an order returning the child to the parent or
4 parents. The court shall retain jurisdiction over a child
5 returned to the parent or parents for a period of 6 months,
6 but, at that time, based on a report of the social service
7 agency, information provided by the child and the guardian ad
8 litem, if appointed, and any other relevant factors, the court
9 shall make a determination as to whether its jurisdiction
10 shall continue or be terminated.
11 (b) If grounds for dependency have not been
12 established, dismiss the petition.
13 (9) After termination of parental rights, the court
14 shall retain jurisdiction over any child for whom custody is
15 given to a social service agency until the child is adopted.
16 The court shall review the status and, pursuant to s.
17 39.701(8)(a), the appropriateness of the child's placement and
18 the progress being made toward permanent adoptive placement.
19 As part of this continuing jurisdiction, for good cause shown
20 by the guardian ad litem for the child or by the child, the
21 court may review the appropriateness of the adoptive placement
22 of the child.
23 Section 39. Section 39.820, Florida Statutes, is
24 amended to read:
25 39.820 Definitions.--As used in the Florida Statutes
26 this part, the term:
27 (1) "Guardian ad litem" as referred to in any civil or
28 criminal proceeding includes the following: a Circuit Office
29 of Children's Representation as represented by the staff or
30 volunteers appointed by the Circuit Office of Children's
31 Representation to provide the best-interest representation to
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1 the child, certified guardian ad litem program, a duly
2 certified volunteer, a staff attorney, contract attorney, or
3 certified pro bono attorney working on behalf of a guardian ad
4 litem or the program; staff members of a program office; a
5 court-appointed attorney; or a responsible adult who is
6 appointed by the court to represent the best interests of a
7 child in a proceeding as provided for by law, including, but
8 not limited to, this chapter, who is a party to any judicial
9 proceeding as a representative of the child, and who serves
10 until discharged by the court.
11 (2) "Guardian advocate" means a person appointed by
12 the court to act on behalf of a drug dependent newborn
13 pursuant to the provisions of this part.
14 Section 40. Section 39.821, Florida Statutes, is
15 amended to read:
16 39.821 Qualifications of guardians ad litem.--
17 (1) Because of the special trust or responsibility
18 placed in a guardian ad litem and the staff of the Circuit
19 Office of Children's Representation representing children in
20 proceedings under chapter 39, the Circuit Office of Children's
21 Representation Guardian Ad Litem Program may use any private
22 funds collected by the program, or any state funds so
23 designated, to conduct a security background investigation
24 before certifying a volunteer or staff member to serve. A
25 security background investigation must include, but need not
26 be limited to, employment history checks, checks of
27 references, local criminal records checks through local law
28 enforcement agencies, and statewide criminal records checks
29 through the Department of Law Enforcement. Upon request, an
30 employer shall furnish a copy of the personnel record for the
31 employee or former employee who is the subject of a security
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1 background investigation conducted under this section. The
2 information contained in the personnel record may include, but
3 need not be limited to, disciplinary matters and the reason
4 why the employee was terminated from employment. An employer
5 who releases a personnel record for purposes of a security
6 background investigation is presumed to have acted in good
7 faith and is not liable for information contained in the
8 record without a showing that the employer maliciously
9 falsified the record. A security background investigation
10 conducted under this section must ensure that a person is not
11 certified as a guardian ad litem or hired as a staff member of
12 a Circuit Office of Children's Representation to represent
13 children in proceedings under chapter 39 if the person has
14 been convicted of, regardless of adjudication, or entered a
15 plea of nolo contendere or guilty to, any offense prohibited
16 under the provisions of the Florida Statutes specified in s.
17 435.04(2) or under any similar law in another jurisdiction.
18 Before certifying an applicant to serve as a guardian ad litem
19 or as a staff member of a Circuit Office of Children's
20 Representation to represent children in proceedings under
21 chapter 39, the Circuit Office of Children's Representation
22 chief judge of the circuit court may request a federal
23 criminal records check of the applicant through the Federal
24 Bureau of Investigation. In analyzing and evaluating the
25 information obtained in the security background investigation,
26 the office program must give particular emphasis to past
27 activities involving children, including, but not limited to,
28 child-related criminal offenses or child abuse. The office
29 program has the sole discretion in determining whether to
30 certify a person based on his or her security background
31 investigation. The information collected pursuant to the
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1 security background investigation is confidential and exempt
2 from s. 119.07(1).
3 (2) This section does not apply to a certified
4 guardian ad litem who was certified before October 1, 1995, an
5 attorney who is a member in good standing of The Florida Bar,
6 or a licensed professional who has undergone a comparable
7 security background investigation as a condition of licensure
8 within 5 years before of applying for certification as a
9 guardian ad litem or as a staff member of a Circuit Office of
10 Children's Representation representing children in proceedings
11 under chapter 39.
12 (3) It is a misdemeanor of the first degree,
13 punishable as provided in s. 775.082 or s. 775.083, for any
14 person to willfully, knowingly, or intentionally fail, by
15 false statement, misrepresentation, impersonation, or other
16 fraudulent means, to disclose in any application for a
17 volunteer position or for paid employment with a Circuit
18 Office of Children's Representation to represent children in
19 proceedings under chapter 39 the Guardian Ad Litem Program,
20 any material fact used in making a determination as to the
21 applicant's qualifications for such position.
22 Section 41. Section 39.822, Florida Statutes, is
23 amended to read:
24 39.822 Appointment of guardian ad litem for abused,
25 abandoned, or neglected child.--
26 (1) A guardian ad litem for a child must be a
27 representative of a Circuit Office of Children's
28 Representation, must be an individual investigated by the
29 Circuit Office of Children's Representation and appointed by
30 the court for one specific case, or must be an attorney who is
31 a member in good standing of The Florida Bar. Before
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1 appointing an individual under this chapter, the court shall
2 request the Circuit Office of Children's Representation to
3 conduct a security background investigation as provided in s.
4 39.821. A guardian ad litem who is not an attorney and who is
5 investigated for the limited representation in a case must be
6 represented by legal counsel in all proceedings related to the
7 child. shall be appointed by the court at the earliest
8 possible time to represent the child in any child abuse,
9 abandonment, or neglect judicial proceeding, whether civil or
10 criminal. Any person participating in a civil or criminal
11 judicial proceeding resulting from such appointment shall be
12 presumed prima facie to be acting in good faith and in so
13 doing shall be immune from any liability, civil or criminal,
14 that otherwise might be incurred or imposed.
15 (2) In those cases in which the parents are
16 financially able, the parent or parents of the child shall pay
17 reimburse the court, in part or in whole, for the cost of
18 provision of guardian ad litem services and legal services.
19 Reimbursement for services contracted through a Circuit Office
20 of Children's Representation to the individual providing
21 guardian ad litem services shall not be contingent upon
22 successful collection by the court from the parent or parents.
23 (3) When a child and the child's parents are indigent
24 under s. 27.52, the Circuit Office of Children's
25 Representation shall be appointed to represent the child.
26 (4)(3) In proceedings under this chapter, the guardian
27 ad litem or the program representative of the Circuit Office
28 of Children's Representation shall review all disposition
29 recommendations and changes in placements, and must be present
30 at all critical stages of the dependency proceeding and shall
31 or submit a written report of findings in proceedings to
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1 determine dependency and to terminate parental rights and may
2 submit a report of findings in other proceedings and when
3 requested by the court, the guardian ad litem may submit
4 recommendations to the court. Written reports must be filed
5 with the court and served on all parties whose whereabouts are
6 known at least 72 hours prior to the hearing.
7 Section 42. Section 39.8225, Florida Statutes, is
8 created to read:
9 39.8225 Guardians ad litem; powers, duties, and
10 authority.--
11 (1) A guardian ad litem shall act in the child's best
12 interest, advocate for the child, and take appropriate action
13 to protect the best interest of the child.
14 (2) In an action brought pursuant to the Florida Rules
15 of Juvenile Procedure for dependency proceedings, the guardian
16 ad litem shall represent the best interest of the child after
17 investigating the allegations in the pleadings and the needs
18 of the child, after discussing the allegations with the child
19 and legal counsel, and after giving significant weight to the
20 expressed interests of the child. The guardian ad litem, other
21 than a representative of a Circuit Office of Children's
22 Representation, must be represented by an attorney.
23 (3) The guardian ad litem shall investigate the
24 allegations in the pleadings and the needs of the child for
25 the case and the guardian ad litem, in his or her
26 investigation, shall:
27 (a) Visit and when possible discuss the case with the
28 child.
29 (b) When appropriate for the representation, observe
30 the child's interactions with parents, siblings, or foster
31 parents; observe the child's family placement or proposed
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1 permanent placement when there is one; and, when appropriate,
2 observe his or her socialization skills at school or other
3 care facilities.
4 (c) Conduct interviews with persons involved with the
5 child or related to the case, including, but not limited to,
6 when appropriate for the representation, an interview with the
7 child's parent, guardian, custodian, teacher, or foster
8 family; medical professionals treating or evaluating the
9 child; other caretakers or proposed adoptive parents; staff
10 members of the Department of Children and Family Services or
11 the Department of Juvenile Justice; law enforcement personnel
12 who are involved in the case; and any other person whom the
13 guardian ad litem and the attorney determines appropriate.
14 (d) Obtain the legal, social, medical, or
15 psychological reports relevant to understanding the facts of
16 the case and the status and conditions of the child and other
17 participants in the proceeding. However, the attorney client
18 privilege and the work-product privilege may be claimed by
19 legal counsel on behalf of their clients.
20 (4) The guardian ad litem, and the attorney if the
21 child is going to be present in court, shall consult with the
22 child before any hearing, court appearance, or other
23 proceeding unless the court has excused the child's presence
24 in court pursuant to court order under 39.01(51). If the child
25 is of an age and capacity to understand, the proceeding must
26 be explained to the child in language appropriate to the
27 child's age, education, and comprehension ability, and the
28 child shall be offered the opportunity to attend the
29 proceeding.
30 (5) Before each hearing, the guardian ad litem shall
31 discuss with legal counsel information on all observations,
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1 documentation obtained, and factual information the guardian
2 ad litem believes that the court should have in order to make
3 a best-interest determination for the child regarding the
4 issues before the court. If a Circuit Office of Children's
5 Representation is providing representation, the information
6 may be discussed with representatives of the office, as
7 required by office procedures. After reviewing the information
8 and consulting with the child and, when appropriate, with
9 staff members of the Circuit Office of Children's
10 Representation, the attorney and the guardian ad litem shall
11 determine the best manner in which to provide the court with
12 all information necessary for the court to know the child,
13 know the expressed interests of the child, and determine what
14 is in the best interest of the child. In every case the court
15 must be informed of the expressed interest of the child
16 related to the proceeding. When the law requires a written
17 report, the guardian ad litem and counsel shall provide the
18 information to the court as required by law.
19 (6) If a written report is not required to include
20 recommendations, the guardian ad litem must be prepared to
21 present the court with a recommendation as to the best
22 interest of the child based on what the child would want if he
23 or she could, using adult judgment and knowledge, evaluate the
24 available information and make a request to the court.
25 (7) When a guardian ad litem is appointed, the court
26 may issue an order directing persons and entities contacted by
27 the guardian ad litem to allow the guardian ad litem to
28 inspect and copy any documents related to the child, the
29 child's parents, or other custodial persons or any household
30 member with whom the child resided, currently resides, or is
31 proposed to reside or any person who is otherwise related to
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1 the allegation in the pleadings. The guardian ad litem,
2 through counsel, may also petition the court for an order
3 directed to a specified person, agency, or organization,
4 including, but not limited to, a hospital, medical doctor,
5 dentist, psychologist, or psychiatrist, which order directs
6 that the guardian ad litem be allowed to inspect and copy any
7 records or documents that relate to the minor child, the
8 child's parent or other custodial person, or any household
9 member with whom the child resides. An order based on a
10 petition shall be obtained only after notice to all parties
11 and a hearing thereon.
12 (8) The guardian ad litem shall submit his or her
13 report to the court, if a report is to be submitted, regarding
14 any stipulation or agreement, whether incidental, temporary,
15 or permanent, which affects the interest or welfare of the
16 minor child, within 10 days after the date the stipulation or
17 agreement is served upon the guardian ad litem or as directed
18 by the court.
19 (9) The guardian ad litem, through counsel, may
20 request the court to order an expert examination of the child,
21 the child's parent, or any other interested party by a medical
22 doctor, dentist, or other health care provider, including a
23 psychiatrist, psychologist, or other licensed mental health
24 professional.
25 (10) The guardian ad litem may, unless a report is
26 otherwise required by law, file a written report that may
27 include recommendations and shall include any expressed
28 interests of the child. When a report is filed, it must be
29 filed and served on all parties at least 3 days before the
30 hearing at which it will be presented, unless the court waives
31
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1 the time limit or the law requiring the report specifies a
2 different time.
3 (11) The guardian ad litem must be provided with
4 copies of all pleadings, notices, and other documents filed in
5 the action and is entitled to reasonable notice before any
6 action affecting the child is taken by any of the parties,
7 their counsel, or the court.
8 (12) A guardian ad litem, acting through counsel,
9 shall actively file any pleadings, motions, or petitions for
10 relief which the guardian ad litem considers appropriate or
11 necessary in furtherance of the guardian's representation of
12 the child. The guardian ad litem, through counsel, is entitled
13 to be present and to participate in all depositions, hearings,
14 and other proceedings in the action, and, through counsel, may
15 compel the attendance of witnesses.
16 (13) The duties and rights of a nonattorney guardian
17 ad litem does not include the right to practice law.
18 (14) A guardian ad litem is not required to post bond
19 but shall file an acceptance of the office.
20 (15) A guardian ad litem is entitled to receive
21 service of pleadings and papers as provided by the Florida
22 Rules of Procedure applicable to the case.
23 Section 43. Section 39.8226, Florida Statutes, is
24 created to read:
25 39.8226 Legal counsel for a child.--
26 (1) The court may appoint counsel to represent the
27 expressed interest of a child, in lieu of or in addition to a
28 guardian ad litem, in any dependency case related to the
29 child, if the court determines that the child is of an age and
30 capacity to participate in his or her representation and the
31
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1 child or the child's parents or guardian can pay for the
2 representation.
3 (2)(a) If a Circuit Office of Children's
4 Representation has been appointed to represent the child, the
5 court may appoint counsel to represent the expressed interest
6 of a child, in lieu of or in addition to a guardian ad litem,
7 only if the court finds that the child is of an age and
8 capacity to participate in his or her representation and
9 either the expressed interests of the child and the
10 best-interest representation by the guardian ad litem do not
11 coincide or the complexity of the pending case or other legal
12 actions suggest that representation for the child is
13 appropriate.
14 (b) If the guardian ad litem's best-interest
15 representation and the expressed interests of the child do not
16 coincide, the Circuit Office of Children's Representation must
17 petition the court for a review to determine whether the
18 provisions of paragraph (a) have been met, whether the child
19 wants independent counsel and whether the child wants or it is
20 appropriate or required under the law for a guardian ad litem
21 to continue to represent the best interest of the child in
22 some or all issues.
23 (3) Upon petition of the Circuit Office of Children's
24 Representation, the court may appoint independent counsel to
25 represent the child in collateral issues if the office does
26 not have the expertise to provide appropriate representation.
27 The petition must address whether the guardian ad litem will
28 continue to represent the best interest of the child in any or
29 all proceedings.
30 Section 44. Section 39.84, Florida Statutes, is
31 created to read:
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1 39.84 Guardians ad litem; confidentiality.--The
2 guardian ad litem shall maintain as confidential all
3 information and documents received from any source and may not
4 disclose such information or documents except, as provided by
5 law or Florida rules of evidence and procedure, in testimony
6 or a report to the court. When a report is filed with the
7 court, it must be served upon the parties to the action and
8 their counsel or as directed by the court.
9 Section 45. Section 39.86, Florida Statutes, is
10 created to read:
11 39.86 Guardians ad litem and psychologists;
12 immunity.--Any person participating in a judicial proceeding
13 as a guardian ad litem, as staff or a volunteer representing
14 the Circuit Office of Children's Representation in a
15 proceeding under this chapter, or a court-appointed
16 psychologist shall be presumed prima facie to be acting in
17 good faith, and, in so doing, shall be immune from any
18 liability, civil or criminal, that otherwise might be incurred
19 or imposed.
20 Section 46. Subsection (8) of section 40.24, Florida
21 Statutes, is amended to read:
22 40.24 Compensation and reimbursement policy.--
23 (8) In circuits that elect to allow jurors to donate
24 their jury service fee upon conclusion of juror service, each
25 juror may irrevocably donate all of the juror's compensation
26 to the Statewide Public Guardianship and Children's
27 Representation Office for expenditure to represent children in
28 dependency proceeding the 26 U.S.C. s. 501(c)(3) organization
29 specified by the guardian ad litem program or to a domestic
30 violence shelter as specified annually on a rotating basis by
31 the clerk of court in the circuit for the juror's county of
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1 residence. The funds collected may not reduce or offset the
2 amount of compensation that the guardian ad litem program or
3 domestic violence shelter would otherwise receive from the
4 state. The clerk of court shall ensure that all jurors are
5 given written notice at the conclusion of their service that
6 they have the option to so donate their compensation, and that
7 the applicable program specified by the guardian ad litem
8 program or a domestic violence shelter receives all funds
9 donated by the jurors. Any guardian ad litem program
10 receiving donations of juror compensation must expend such
11 moneys on services for children for whom guardians ad litem
12 have been appointed.
13 Section 47. Paragraph (a) of subsection (6) of section
14 215.5601, Florida Statutes, is amended to read:
15 215.5601 Lawton Chiles Endowment Fund.--
16 (6) ADVISORY COUNCIL.--The Lawton Chiles Endowment
17 Fund Advisory Council is established for the purpose of
18 reviewing the funding priorities of the state agencies,
19 evaluating their requests against the mission and goals of the
20 agencies and legislative intent for the use of endowment
21 funds, and allowing for public input and advocacy.
22 (a) The advisory council shall consist of 15 members,
23 including:
24 1. The director of the United Way of Florida, Inc., or
25 his or her designee;
26 2. The director of the Foster Parents Association, or
27 his or her designee;
28 3. The chair of the Department of Elderly Affairs
29 Advisory Council, or his or her designee;
30 4. The president of the Florida Association of Area
31 Agencies on Aging, or his or her designee;
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1 5. The State Long-Term Care Ombudsman, or his or her
2 designee;
3 6. The state director of the Florida AARP, or his or
4 her designee;
5 7. The director of the Florida Pediatric Society, or
6 his or her designee;
7 8. The Director of the Statewide Public Guardianship
8 and Children's Representation Office A representative of the
9 Guardian Ad Litem Program, appointed by the Governor;
10 9. A representative of a child welfare lead agency for
11 community-based care, appointed by the Governor;
12 10. A representative of an elder care lead agency for
13 community-based care, appointed by the Governor;
14 11. A representative of a statewide child advocacy
15 organization, appointed by the Governor;
16 12. One consumer caregiver for children, appointed by
17 the Governor;
18 13. One person over the age of 60 years to represent
19 the interests of elders, appointed by the Governor;
20 14. One person under the age of 18 years to represent
21 the interests of children, appointed by the Governor; and
22 15. One consumer caregiver for a functionally impaired
23 elderly person, appointed by the Governor.
24 Section 48. Subsection (12) of section 985.308,
25 Florida Statutes, is amended to read:
26 985.308 Juvenile sexual offender commitment programs;
27 sexual abuse intervention networks.--
28 (12) Membership of a sexual abuse intervention network
29 shall include, but is not limited to, representatives from:
30 (a) Local law enforcement agencies;
31 (b) Local school boards;
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1 (c) Child protective investigators;
2 (d) The office of the state attorney;
3 (e) The office of the public defender;
4 (f) The juvenile division of the circuit court;
5 (g) Professionals licensed under chapter 458, chapter
6 459, s. 490.0145, or s. 491.0144 providing treatment for
7 juvenile sexual offenders or their victims;
8 (h) The Statewide Public Guardianship and Children's
9 Representation Office guardian ad litem program;
10 (i) The Department of Juvenile Justice; and
11 (j) The Department of Children and Family Services.
12 Section 49. For purposes of incorporating the
13 amendment to section 39.202, Florida Statutes, in references
14 thereto, paragraph (f) of subsection (1) of section 39.3035,
15 Florida Statutes, is reenacted to read:
16 39.3035 Child advocacy centers; standards; state
17 funding.--
18 (1) In order to become eligible for a full membership
19 in the Florida Network of Children's Advocacy Centers, Inc., a
20 child advocacy center in this state shall:
21 (f) Provide case tracking of child abuse cases seen
22 through the center. A center shall also collect data on the
23 number of child abuse cases seen at the center, by sex, race,
24 age, and other relevant data; the number of cases referred for
25 prosecution; and the number of cases referred for mental
26 health therapy. Case records shall be subject to the
27 confidentiality provisions of s. 39.202.
28 Section 50. For purposes of incorporating the
29 amendment to section 39.202, Florida Statutes, in references
30 thereto, subsection (2) of section 39.507, Florida Statutes,
31 is reenacted to read:
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1 39.507 Adjudicatory hearings; orders of
2 adjudication.--
3 (2) All hearings, except as provided in this section,
4 shall be open to the public, and a person may not be excluded
5 except on special order of the judge, who may close any
6 hearing to the public upon determining that the public
7 interest or the welfare of the child is best served by so
8 doing. The parents or legal custodians shall be allowed to
9 obtain discovery pursuant to the Florida Rules of Juvenile
10 Procedure, provided such discovery does not violate the
11 provisions of s. 39.202. Hearings involving more than one
12 child may be held simultaneously when the children involved
13 are related to each other or were involved in the same case.
14 The child and the parents, caregivers, or legal custodians of
15 the child may be examined separately and apart from each
16 other.
17 Section 51. For purposes of incorporating the
18 amendment to section 39.701, Florida Statutes, in references
19 thereto, subsection (4) of section 63.052, Florida Statutes,
20 is reenacted to read:
21 63.052 Guardians designated; proof of commitment.--
22 (4) If a minor is voluntarily surrendered to an
23 adoption entity for subsequent adoption and the adoption does
24 not become final within 180 days, the adoption entity must
25 report to the court on the status of the minor and the court
26 may at that time proceed under s. 39.701 or take action
27 reasonably necessary to protect the best interest of the
28 minor.
29 Section 52. For purposes of incorporating the
30 amendment to section 39.402, Florida Statutes, in references
31
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1 thereto, subsection (20) of section 984.03, Florida Statutes,
2 is reenacted to read:
3 984.03 Definitions.--When used in this chapter, the
4 term:
5 (20) "Detention hearing" means a hearing for the court
6 to determine if a child should be placed in temporary custody,
7 as provided for under s. 39.402, in dependency cases.
8 Section 53. This act shall take effect October 1,
9 2002.
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