Florida Senate - 2008 COMMITTEE AMENDMENT

Bill No. SB 2762

842536

CHAMBER ACTION

Senate

Comm: RCS

4/1/2008

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House



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The Committee on Children, Families, and Elder Affairs

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(Villalobos) recommended the following amendment:

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     Senate Amendment (with title amendment)

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     Delete everything after the enacting clause

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and insert:

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     Section 1.  Section 39.00145, Florida Statutes, is created

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to read:

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     39.00145 Records concerning children.--

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     (1) The case file of every child under the supervision of

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or in the custody of the department, the department's authorized

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agents, or contract providers for the department, including

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community-based care lead agencies and their subcontracted

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providers, must be maintained in a complete and accurate manner,

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including, but not limited to, the child's case plan required by

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part VIII of this chapter, and the full name and street address

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of any and all shelters, foster parents, group homes, treatment

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facilities, or locations where the child is placed. The child

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shall be provided with a complete and accurate copy of his or her

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entire case file, at no cost, upon the request of the child or

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the child's caregiver, guardian ad litem, or attorney on behalf

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of the child.

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     (2) Notwithstanding any other provision in this chapter,

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the records in the case file shall be made available for review

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upon request of the child or the child's caregiver, guardian ad

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litem, or attorney, at no cost. A request by the child's attorney

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or guardian ad litem must be submitted in writing.

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     (a) The release of records in the case file to the child's

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caregiver or guardian ad litem does not waive the confidential

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status of the information contained in the records.

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     (b) If a child, or the child's caregiver, attorney, or

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guardian ad litem, requests access to the child's case file, any

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person who fails to provide records in the case file under

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assertion of a claim of an exemption from the public-records

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requirements of chapter 119, or who fails to provide access

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within a reasonable time, is subject to sanctions and penalties

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under s. 119.10.

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     (3) If a court determines that sharing information in the

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child's case file is necessary to ensure access to appropriate

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services or for the safety of the child, the court may approve

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the release of confidential records or information contained in

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them. Information so released retains its confidential or exempt

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status. For purposes of the Family Educational Rights and Privacy

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Act, the disclosure of information in health and safety

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emergencies applies to a child placed in shelter care or found to

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be dependent under this chapter.

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     (4) Notwithstanding any other provision of law, all state

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and local agencies and programs that provide services to

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children, or are responsible for a child's safety, including the

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Department of Juvenile Justice, the Department of Health, the

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Agency for Health Care Administration, the Agency for Persons

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with Disabilities, the Department of Education, individual school

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districts, the Statewide Guardian Ad Litem program, and any

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contract provider of such agencies, may share with each other

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confidential records or information that is confidential and

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exempt from disclosure under chapter 119 if the records or

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information are reasonably necessary to assure access to

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appropriate services or for the safety of the child. Confidential

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or exempt information shared among agencies and agency

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contractors, as agents for the state, remains confidential or

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exempt as provided by law. Any records or information otherwise

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made confidential by federal law may not be released under this

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section. This subsection does not apply to information concerning

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clients and records of certified domestic violence centers which

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are confidential under s. 39.908 and privileged under s. 90.5036.

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     Section 2.  Subsection (1) and paragraph (a) of subsection

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(2) of section 39.202, Florida Statutes, are amended, paragraph

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(r) is added to subsection (2) of that section, and subsection

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(9) is added to that section, to read:

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     39.202  Confidentiality of reports and records in cases of

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child abuse or neglect.--

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     (1)  In order to protect the rights of the child and the

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child's parents or other persons responsible for the child's

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welfare, all records held by the department concerning reports of

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child abandonment, abuse, or neglect, including reports made to

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the central abuse hotline and all records generated as a result

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of such reports, shall be confidential and exempt from the

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provisions of s. 119.07(1) and shall not be disclosed except as

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specifically authorized by this chapter. Such exemption from s.

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119.07(1) applies to information in the possession of those

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entities granted access as set forth in this section. As provided

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in s. 39.00145, any entity granted access to records under this

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section shall grant access to any other entity or individual

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entitled to access under this section.

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     (2)  Except as provided in subsection (4), access to such

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records, excluding the name of the reporter which shall be

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released only as provided in subsection (5), shall be granted

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only to the following persons, officials, and agencies:

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     (a)  Employees, authorized agents, or contract providers of

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the department, including community-based care lead agencies and

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their subcontracted providers, the Department of Health, the

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Agency for Persons with Disabilities, or county agencies

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responsible for carrying out:

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     1.  Child or adult protective investigations;

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     2.  Ongoing child or adult protective services;

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     3.  Early intervention and prevention services;

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     4.  Healthy Start services;

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     5.  Licensure or approval of adoptive homes, foster homes,

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child care facilities, facilities licensed under chapter 393, or

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family day care homes or informal child care providers who

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receive subsidized child care funding, or other homes used to

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provide for the care and welfare of children; or

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     6. Services for victims of domestic violence when provided

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by certified domestic violence centers working at the

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department's request as case consultants or with shared clients.

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Also, employees or agents of the Department of Juvenile Justice

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responsible for the provision of services to children, pursuant

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to chapters 984 and 985.

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     (r) Persons with whom placement of a child is being

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considered or has been granted including, but not limited to,

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foster parents, preadoptive and adoptive parents, or an adoptive

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entity acting on their behalf.

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     (9) Any individual, agency, or other entity entitled to

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access records under this section may petition a circuit court,

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in accordance with s. 119.11, to enforce the provisions of this

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section.

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     Section 3.  Section 39.2021, Florida Statutes, is amended to

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read:

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     39.2021  Release of confidential information.--

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     (1) Any person or organization, including the department of

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Children and Family Services, may petition the court for an order

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making public the records of the department of Children and

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Family Services which pertain to an investigation investigations

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of alleged abuse, abandonment, or neglect of a child. The court

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shall determine whether there is good cause exists for public

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access to the records sought or a portion thereof.

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     (a) In making a this determination of good cause, the court

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shall balance the best interests of the child who is the focus of

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the investigation and the interest of the that child's siblings,

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together with the privacy rights of other persons identified in

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the reports, against the public interest. The public interest in

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access to such records is reflected in s. 119.01(1), and includes

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the need for the public citizens to know of and adequately

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evaluate the actions of the department of Children and Family

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Services and the court system in providing children of this state

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with the protections enumerated in s. 39.001. However, this

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subsection does not contravene s. 39.202, which protects the name

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of any person reporting the abuse, abandonment, or neglect of a

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child.

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     (2)  In cases involving serious bodily injury to a child,

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the department of Children and Family Services may petition the

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court for an order for the immediate public release of records of

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the department which pertain to the protective investigation. The

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petition must be personally served upon the child, the child's

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parent or guardian, and any person named as an alleged

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perpetrator in the report of abuse, abandonment, or neglect. The

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court must determine whether good cause exists for the public

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release of the records sought no later than 24 hours, excluding

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Saturdays, Sundays, and legal holidays, after the date the

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department filed the petition with the court. If the court does

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not grant or deny the petition within the 24-hour time period,

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the department may release to the public summary information

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including:

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     (a)  A confirmation that an investigation has been conducted

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concerning the alleged victim.

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     (b)  The dates and brief description of procedural

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activities undertaken during the department's investigation.

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     (c)  The date of each judicial proceeding, a summary of each

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participant's recommendations made at the judicial proceeding,

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and the ruling of the court.

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The summary information shall not include the name of, or other

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identifying information with respect to, any person identified in

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any investigation. In making a determination to release

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confidential information, the court shall balance the best

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interests of the child who is the focus of the investigation and

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the interests of that child's siblings, together with the privacy

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rights of other persons identified in the reports against the

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public interest for access to public records. However, this

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subsection does not contravene s. 39.202, which protects the name

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of any person reporting abuse, abandonment, or neglect of a

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child.

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     (3) If When the court determines that there is good cause

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for public access exists, the court shall direct that the

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department to redact the name of, and other identifying

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information with respect to, any person identified in the any

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protective investigation report until such time as the court

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finds that there is probable cause to believe that the person

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identified committed an act of alleged abuse, abandonment, or

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neglect.

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     (4) Notwithstanding subsections (1) and (2), the department

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may make public the records of the department, or any information

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included in such records, which pertains to investigations of

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abuse, abandonment, or neglect of a child which resulted in

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serious mental, emotional, or physical injury to the child, if

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the secretary determines that release of the records is in the

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public interest and that the public interest outweighs any

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privacy interests contained in the records. The public interest

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in access to such records is reflected in s. 119.01(1), and

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includes the need for the public to know of and adequately

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evaluate the actions of the department and the court system in

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providing children with the protections enumerated in s. 39.001.

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However, this subsection does not contravene s. 39.202, which

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protects the name of any person reporting the abuse, abandonment,

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or neglect of a child.

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     (a) Before releasing the records, the department shall

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attempt to notify the child, the child's caregiver, the child's

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attorney, the guardian ad litem assigned to the case, any person

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named as an alleged perpetrator in the report of abuse,

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abandonment, or neglect, and any law enforcement agency actively

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involved in investigating the alleged abuse, abandonment, or

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neglect. Such notification must take place at least 3 business

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days before the release of the records, by hand or via overnight

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delivery service, with evidence of delivery.

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     (b) After receiving notice, the child, the child's

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caregiver, the child's attorney, the guardian ad litem assigned

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to the case, any person named as an alleged perpetrator in the

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report, and any law enforcement agency actively investigating an

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allegation may petition a circuit court for an order preventing

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the department from releasing the records. If notified of a

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petition filed under this paragraph, the department may not

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release the records without a court order.

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     (c) The circuit court may order the department not to

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release the records only after finding that the best interests of

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the petitioner outweigh the public interest. Any information

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otherwise made confidential or exempt by law, including the name

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of the person reporting the abuse, abandonment, or neglect, may

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not be released pursuant to this subsection.

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     Section 4.  Section 63.037, Florida Statutes, is amended to

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read:

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     63.037  Proceedings applicable to cases resulting from a

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termination of parental rights under chapter 39.--A case in which

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a minor becomes available for adoption after the parental rights

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of each parent have been terminated by a judgment entered

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pursuant to chapter 39 shall be governed by s. 39.812 and this

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chapter. Adoption proceedings initiated under chapter 39 are

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exempt from the following provisions of this chapter: disclosure

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requirements for the adoption entity provided in s. 63.085(1) s.

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63.085; general provisions governing termination of parental

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rights pending adoption provided in s. 63.087; notice and service

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provisions governing termination of parental rights pending

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adoption provided in s. 63.088; and procedures for terminating

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parental rights pending adoption provided in s. 63.089.

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     Section 5.  Section 63.085, Florida Statutes, is amended to

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read:

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     63.085  Disclosure by adoption entity.--

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     (1)  DISCLOSURE REQUIRED TO PARENTS AND PROSPECTIVE ADOPTIVE

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PARENTS.--Within Not later than 14 days after a person seeking to

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adopt a minor or a person seeking to place a minor for adoption

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contacts an adoption entity in person or provides the adoption

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entity with a mailing address, the entity must provide a written

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disclosure statement to that person if the entity agrees or

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continues to work with the such person. The If an adoption entity

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shall also provide the written disclosure to the parent is

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assisting in the effort to terminate the parental rights of a

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parent who did not initiate the contact with the adoption entity,

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the written disclosure must be provided within 14 days after that

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parent is identified and located. For purposes of providing the

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written disclosure, a person is considered to be seeking to place

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a minor for adoption if when that person has sought information

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or advice from the adoption entity regarding the option of

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adoptive placement. The written disclosure statement must be in

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substantially the following form:

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ADOPTION DISCLOSURE

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THE STATE OF FLORIDA REQUIRES THAT THIS FORM BE PROVIDED TO ALL

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PERSONS CONSIDERING ADOPTING A MINOR OR SEEKING TO PLACE A MINOR

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FOR ADOPTION, TO ADVISE THEM OF THE FOLLOWING FACTS REGARDING

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ADOPTION UNDER FLORIDA LAW:

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     1.  The name, address, and telephone number of the adoption

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entity providing this disclosure is:

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     Name:

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     Address:

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     Telephone Number:

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     2.  The adoption entity does not provide legal

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representation or advice to birth parents or anyone signing a

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consent for adoption or affidavit of nonpaternity, and birth

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parents have the right to consult with an attorney of their own

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choosing to advise them.

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     3.  With the exception of an adoption by a stepparent or

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relative, a child cannot be placed into a prospective adoptive

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home unless the prospective adoptive parents have received a

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favorable preliminary home study, including criminal and child

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abuse clearances.

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     4.  A valid consent for adoption may not be signed by the

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birth mother until 48 hours after the birth of the child, or the

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day the birth mother is notified, in writing, that she is fit for

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discharge from the licensed hospital or birth center. Any man A

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putative father may sign a valid consent for adoption at any time

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after the birth of the child.

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     5.  A consent for adoption signed before the child attains

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the age of 6 months is binding and irrevocable from the moment it

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is signed unless it can be proven in court that the consent was

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obtained by fraud or duress. A consent for adoption signed after

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the child attains the age of 6 months is valid from the moment it

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is signed; however, it may be revoked until the child is placed

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in an adoptive home, or up to 3 days after it was signed,

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whichever period is longer.

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     6.  A consent for adoption is not valid if the signature of

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the person who signed the consent was obtained by fraud or

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duress.

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     7. An unmarried biological father must act immediately in

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order to protect his parental rights. Section 63.062, Florida

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Statutes, prescribes that any father seeking to establish his

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right to consent to the adoption of his child must file a claim

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of paternity with the Florida Putative Father Registry maintained

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by the Office of Vital Statistics of the Department of Health by

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the date a petition to terminate parental rights is filed with

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the court, or within 30 days after receiving service of a Notice

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of Intended Adoption Plan. If he receives a Notice of Intended

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Adoption Plan, he must file a claim of paternity with the Florida

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Putative Father Registry, file a parenting plan with the court,

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and provide financial support to the mother or child within 30

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days following service. An unmarried biological father's failure

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to timely respond to a Notice of Intended Adoption Plan

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constitutes an irrevocable legal waiver of any and all rights

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that the father may have to the child. A claim of paternity

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registration form for the Florida Putative Father Registry may be

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obtained from any local office of the Department of Health,

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Office of Vital Statistics, the Department of Children and

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Families, the Internet websites for these agencies, and the

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offices of the clerks of the Florida circuit courts. The claim of

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paternity form must be submitted to the Office of Vital

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Statistics, Attention: Adoption Unit, P.O. Box 210, Jacksonville,

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FL 32231.

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     8.7. There are alternatives to adoption, including foster

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care, relative care, and parenting the child. There may be

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services and sources of financial assistance in the community

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available to birth parents if they choose to parent the child.

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     9.8. A birth parent has the right to have a witness of his

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or her choice, who is unconnected with the adoption entity or the

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adoptive parents, to be present and witness the signing of the

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consent or affidavit of nonpaternity.

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     10.9. A birth parent 14 years of age or younger must have a

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parent, legal guardian, or court-appointed guardian ad litem to

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assist and advise the birth parent as to the adoption plan.

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     11.10. A birth parent has a right to receive supportive

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counseling from a counselor, social worker, physician, clergy, or

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attorney, and such counseling would be beneficial to the birth

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parent.

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     12.11. The payment of living or medical expenses by the

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prospective adoptive parents before prior to the birth of the

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child does not, in any way, obligate the birth parent to sign the

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consent for adoption.

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     (2) DISCLOSURE TO ADOPTIVE PARENTS.--

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     (a) At the time that an adoption entity is responsible for

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selecting prospective adoptive parents for a born or unborn child

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whose parents are seeking to place the child for adoption or

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whose rights were terminated pursuant to chapter 39, the adoption

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entity must provide the prospective adoptive parents with

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information concerning the background of the child to the extent

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such information is disclosed to the adoption entity by the

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parents, legal custodian, or the department. This subsection

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applies only if the adoption entity identifies the prospective

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adoptive parents and supervises the physical placement of the

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child in the prospective adoptive parents' home. If any

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information cannot be disclosed because the records custodian

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failed or refused to produce the background information, the

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adoption entity has a duty to provide the information if it

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becomes available. An individual or entity contacted by an

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adoption entity to obtain the background information must release

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the requested information to the adoption entity without the

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necessity of a subpoena or a court order. In all cases, the

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prospective adoptive parents must receive all available

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information by the date of the final hearing on the petition for

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adoption. The information to be disclosed includes:

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     1. A family social and medical history form completed

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pursuant to s. 63.162(6).

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     2. The biological mother's medical records documenting her

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prenatal care and the birth and delivery of the child.

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     3. A complete set of the child's medical records

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documenting all medical treatment and care since the child's

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birth and before placement.

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     4. All mental health, psychological, and psychiatric

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records, reports, and evaluations concerning the child before

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placement.

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     5. The child's educational records, including all records

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concerning any special education needs of the child before

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placement.

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     6. Records documenting all incidents that required the

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department to provide services to the child, including all orders

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of adjudication of dependency or termination of parental rights

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issued pursuant to chapter 39, any case plans drafted to address

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the child's needs, all protective services investigations

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identifying the child as a victim, and all guardian ad litem

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reports filed with the court concerning the child.

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     7. Written information concerning the availability of

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adoption subsidies for the child, if applicable.

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     (b) When disclosing information pursuant to this

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subsection, the adoption entity must redact any confidential

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identifying information concerning the child's parents, foster

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parents and their families, siblings, and relatives and

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perpetrators of crimes against the child or involving the child.

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     (3)(2) ACKNOWLEDGMENT OF DISCLOSURE.--The adoption entity

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must obtain a written statement acknowledging receipt of the

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disclosures disclosure required under subsections subsection (1)

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and (2) and signed by the persons receiving the disclosure or, if

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it is not possible to obtain such an acknowledgment, the adoption

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entity must execute an affidavit stating why an acknowledgment

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could not be obtained. If the disclosure was delivered by

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certified United States mail, return receipt requested, a return

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receipt signed by the person from whom acknowledgment is required

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is sufficient to meet the requirements of this subsection. A copy

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of the acknowledgment of receipt of the disclosure must be

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provided to the person signing it. A copy of the acknowledgment

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or affidavit executed by the adoption entity in lieu of the

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acknowledgment must be maintained in the file of the adoption

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entity. The original acknowledgment or affidavit must be filed

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with the court.

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     (4)(3) REVOCATION OF CONSENT.--Failure to meet the

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requirements of this section subsection (1) or subsection (2)

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does not constitute grounds for revocation of a consent to

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adoption or withdrawal of an affidavit of nonpaternity unless the

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extent and circumstances of such a failure result in a material

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failure of fundamental fairness in the administration of due

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process, or the failure constitutes or contributes materially to

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fraud or duress in obtaining a consent to adoption or affidavit

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of nonpaternity.

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     Section 6.  Section 402.115, Florida Statutes, is amended to

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read:

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     402.115  Sharing confidential or exempt

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information.--Notwithstanding any other provision of law to the

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contrary, the Department of Health, the Department of Children

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and Family Services, the Department of Juvenile Justice, and the

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Agency for Persons with Disabilities may share confidential

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information or information exempt from disclosure under chapter

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119 on any individual who is or has been the subject of a program

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within the jurisdiction of each agency. Information so exchanged

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remains confidential or exempt as provided by law.

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     Section 7.  Present subsections (6), (7), and (8) of section

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415.107, Florida Statutes, are renumbered as subsections (7),

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(8), and (9), respectively, and a new subsection (6) is added to

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that section, to read:

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     415.107  Confidentiality of reports and records.--

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     (6) Any individual, agency, or other entity entitled to

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access records under this section may petition a circuit court,

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in accordance with s. 119.11, to enforce the provisions of this

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section.

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     Section 8.  Section 415.1071, Florida Statutes, is amended

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to read:

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     415.1071  Release of confidential information.--

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     (1) Any person or organization, including the department of

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Children and Family Services, may petition the court for an order

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making public the records of the department of Children and

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Family Services which pertain to an investigation investigations

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of alleged abuse, neglect, or exploitation of a vulnerable adult.

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The court shall determine whether there is good cause exists for

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public access to the records sought or a portion thereof. In

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making a this determination of good cause, the court shall

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balance the best interests of the vulnerable adult who is the

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focus of the investigation together with the privacy right of

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other persons identified in the reports, against the public

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interest. The public interest in access to such records is

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reflected in s. 119.01(1), and includes the need for the public

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citizens to know of and adequately evaluate the actions of the

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department of Children and Family Services and the court system

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in providing vulnerable adults of this state with the protections

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enumerated in s. 415.101. However, this subsection does not

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contravene s. 415.107, which protects the name of any person

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reporting the abuse, neglect, or exploitation of a vulnerable

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adult.

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     (2)  In cases involving serious bodily injury to a

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vulnerable adult, the department of Children and Family Services

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may petition the court for an order for the immediate public

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release of records of the department which pertain to the

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protective investigation. The petition must be personally served

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upon the vulnerable adult, the vulnerable adult's legal guardian,

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if any, and any person named as an alleged perpetrator in the

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report of abuse, neglect, or exploitation. The court must

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determine whether good cause exists for the public release of the

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records sought no later than 24 hours, excluding Saturdays,

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Sundays, and legal holidays, after the date the department filed

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the petition with the court. If the court does not grant or deny

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the petition within the 24-hour time period, the department may

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release to the public summary information including:

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     (a)  A confirmation that an investigation has been conducted

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concerning the alleged victim.

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     (b)  The dates and brief description of procedural

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activities undertaken during the department's investigation.

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     (c)  The date of each judicial proceeding, a summary of each

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participant's recommendations made at the judicial proceeding,

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and the ruling of the court.

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The summary information shall not include the name of, or other

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identifying information with respect to, any person identified in

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any investigation. In making a determination to release

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confidential information, the court shall balance the best

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interests of the vulnerable adult who is the focus of the

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investigation together with the privacy rights of other persons

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identified in the reports against the public interest for access

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to public records. However, this subsection does not contravene

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s. 415.107, which protects the name of any person reporting

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abuse, neglect, or exploitation of a vulnerable adult.

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     (3) If When the court determines that there is good cause

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for public access exists, the court shall direct that the

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department to redact the name of and other identifying

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information with respect to any person identified in the any

493

protective investigation report until such time as the court

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finds that there is probable cause to believe that the person

495

identified committed an act of alleged abuse, neglect, or

496

exploitation.

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     (4) Notwithstanding subsections (1) and (2), the department

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may make public records of the department which pertain to

499

investigations of alleged abuse, neglect, and exploitation of a

500

vulnerable adult which resulted in serious mental, emotional, or

501

physical injury to the adult if the secretary determines that

502

release of the records is in the public interest and the public

503

interest outweighs any privacy interest contained in the records.

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The public interest in access to such records is reflected in s.

505

119.01(1), and includes the need for the public to know of and

506

adequately evaluate the actions of the department and the court

507

system in providing vulnerable adults of this state with the

508

protections enumerated in s. 415.101. However, this subsection

509

does not contravene s. 415.107, which protects the name of any

510

person reporting the abuse, neglect, or exploitation of a

511

vulnerable adult.

512

     (a) Before releasing the records, the department shall

513

attempt to notify the vulnerable adult, the vulnerable adult's

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legal guardian, if any, any person named as an alleged

515

perpetrator in the report of abuse, neglect, or exploitation, and

516

any law enforcement agency actively involved in investigating the

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alleged abuse, neglect, or exploitation. Such notification must

518

take place at least 3 business days before releasing the records,

519

which must be delivered by hand or via overnight delivery service

520

with evidence of delivery.

521

     (b) After receiving notice, the vulnerable adult, the

522

vulnerable adult's legal guardian, any person named as an alleged

523

perpetrator in the report, or any law enforcement agency actively

524

investigating an allegation may petition a circuit court for an

525

order preventing the department from releasing the records. If

526

notified of a petition filed pursuant to this paragraph, the

527

department may not release the records without a court order.

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     (c) The circuit court may order the department not to

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release the records only after finding that the best interests of

530

the petitioner outweigh the public interest. Any information

531

otherwise made confidential or exempt by law, including the name

532

of the person reporting the abuse, neglect, or exploitation, may

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not be released pursuant to this subsection.

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     Section 9.  This act shall take effect July 1, 2008.

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536

=============== T I T L E  A M E N D M E N T ================

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And the title is amended as follows:

538

539

     Delete everything before the enacting clause

540

and insert:

541

A bill to be entitled

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An act relating to confidential records of children;

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creating s. 39.00145, F.S.; requiring that the case file

544

of a child under the supervision or in the custody of the

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Department of Children and Family Services be maintained

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in a complete and accurate manner; specifying who has

547

access to the case file and records in the file;

548

authorizing the court to directly release the child's

549

records to certain entities; providing that entities that

550

have access to confidential information about a child may

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share it with other entities that provide services

552

benefiting children; amending s. 39.202, F.S.; clarifying

553

who has access to a child's records and who may bring an

554

action to require access to confidential records held by

555

the department; amending s. 39.2021, F.S.; expanding the

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authority of the Department of Children and Family

557

Services to release records relating to children on its

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own initiative upon a showing of good cause; requiring

559

notice to certain parties before release; providing for a

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court order to stop the release; amending s. 63.037, F.S.;

561

clarifying a cross-reference; amending s. 63.085, F.S.;

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requiring an adoption entity to provide certain

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information relating to a child to prospective adoptive

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parents; requiring that certain information be redacted;

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amending s. 402.115, F.S.; adding the Department of

566

Juvenile Justice to the list of agencies that are

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authorized to exchange confidential information; amending

568

s. 415.107, F.S.; clarifying who may bring an action to

569

require access to confidential records held by the

570

Department of Children and Family Services; amending s.

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415.1071, F.S.; expanding the authority of the department

572

to release records relating to vulnerable adults on its

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own initiative upon a showing of good cause; requiring

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notice to certain parties before release; providing for a

575

court order to stop the release; providing an effective

576

date.

     38-06100C-08

CODING: Words stricken are deletions; words underlined are additions.