Florida Senate - 2011                                    SB 1476
       
       
       
       By Senator Flores
       
       
       
       
       38-00683B-11                                          20111476__
    1                        A bill to be entitled                      
    2         An act relating to paternity of a child; amending s.
    3         39.001, F.S.; providing legislative intent; amending
    4         s. 39.01, F.S.; redefining the term “parent” and
    5         defining the term “unmarried biological father”;
    6         amending s. 39.502, F.S.; requiring that an unmarried
    7         biological father be individually notified of the
    8         filing of a dependency petition under certain
    9         circumstances; providing that notice of the petition
   10         for dependency is not required if the unmarried
   11         biological father signs an affidavit of nonpaternity
   12         or consents to termination of his parental rights;
   13         providing for waiver of service of process; requiring
   14         the notice to specifically warn the unmarried
   15         biological father that, if he fails to initiate
   16         specified activities, he will be precluded from
   17         contesting the petition for dependency or any
   18         subsequent petition for termination of parental rights
   19         unless otherwise ordered by the court and will receive
   20         no further notice of judicial proceedings; amending s.
   21         39.503, F.S.; requiring the court to conduct an
   22         inquiry of the parent or legal custodian on specified
   23         issues if the identity or location of a parent is
   24         unknown and a petition for dependency or shelter is
   25         filed; requiring that a prospective parent be given
   26         the opportunity to become a party to the dependency
   27         proceedings if the inquiry and diligent search
   28         identifies the prospective parent; requiring the
   29         prospective parent to complete a sworn affidavit of
   30         parenthood and file it with the court or the
   31         Department of Children and Family Services; requiring
   32         the prospective parent to seek to establish paternity
   33         pursuant to ch. 742, F.S., if a child has two legally
   34         recognized parents; amending s. 39.801, F.S.;
   35         specifying procedures for providing notice to an
   36         unmarried biological father in a proceeding for the
   37         termination of parental rights; setting forth
   38         conditions that the unmarried biological father must
   39         follow in order to contest the petition to terminate
   40         parental rights; specifying the consequences if the
   41         unmarried biological father fails to meet the
   42         conditions to prevent termination of parental rights;
   43         amending s. 39.803, F.S.; requiring the court to
   44         conduct an inquiry of the parent or legal custodian on
   45         specified issues if the identity or location of a
   46         parent is unknown and a petition for termination of
   47         parental rights has been filed; providing an effective
   48         date.
   49  
   50  Be It Enacted by the Legislature of the State of Florida:
   51  
   52         Section 1. Paragraphs (o), (p), and (q) are added to
   53  subsection (1) of section 39.001, Florida Statutes, to read:
   54         39.001 Purposes and intent; personnel standards and
   55  screening.—
   56         (1) PURPOSES OF CHAPTER.—The purposes of this chapter are:
   57         (o) To ensure, whenever possible, that children have the
   58  benefit of loving and caring relationships with both of their
   59  parents and with both maternal and paternal relatives. To that
   60  end, parents should be engaged to the fullest extent possible in
   61  the lives of their children, and prospective parents should be
   62  afforded a prompt, full, and fair opportunity to establish
   63  parenthood and to assume all parental duties. However, a
   64  prospective parent who is an unmarried biological father as
   65  defined in s. 39.01, has no greater rights under this chapter
   66  than he would have under chapter 63. Accordingly, his interest
   67  is inchoate until such time as he demonstrates a timely and full
   68  commitment to the responsibilities of parenthood. Because time
   69  is of the essence in actions filed pursuant to this chapter, and
   70  the time limitations belong to the child and not to the parent
   71  or any prospective parent, including an unmarried biological
   72  father, the parent or prospective parent must be aware that
   73  failure to comply with the specific requirements of this chapter
   74  may result in permanent termination of his or her rights or
   75  interests as a parent or prospective parent, whether actual or
   76  inchoate.
   77         (p)To ensure that each child’s right to a permanent,
   78  loving, and stable family is protected under the law. Each child
   79  has only two legally recognized parents who are entitled to the
   80  rights and responsibilities of parenthood, and, if an unmarried
   81  biological father seeks parental rights to the child by claiming
   82  a biological connection to that child, the unmarried biological
   83  father must act expeditiously to assert and establish his
   84  parental rights.
   85         (q)To compel an unmarried biological father to demonstrate
   86  his commitment to his child if he seeks parental rights to the
   87  child. The unmarried biological father has the opportunity to
   88  prove his commitment to his child by providing appropriate
   89  medical care and financial support to the child and by
   90  establishing legal paternity rights for himself.
   91         Section 2. Subsection (49) of section 39.01, Florida
   92  Statutes, is amended, present subsection (76) of that section is
   93  redesignated as subsection (77), and a new subsection (76) is
   94  added to that section, to read:
   95         39.01 Definitions.—When used in this chapter, unless the
   96  context otherwise requires:
   97         (49) “Parent” means a woman who gives birth to a child and
   98  a man who has legally adopted the child or who was adjudicated
   99  by the court to be the father of the minor child, or any man who
  100  has filed an affidavit of paternity with the Office of Vital
  101  Statistics pursuant to s. 382.013(2)(c) by the date on which an
  102  advisory hearing is held on a petition for termination of
  103  parental rights of any father whose consent to the adoption of
  104  the child would be required under s. 63.062(1). If a child has
  105  been legally adopted, the term “parent” means the adoptive
  106  mother or father of the child. The term does not include an
  107  individual whose parental relationship to the child has been
  108  legally terminated, or an alleged or prospective parent, unless
  109  the parental status falls within the terms of s. 39.503(1) or s.
  110  63.062(1). For purposes of this chapter only, when the phrase
  111  “parent or legal custodian” is used, it refers to rights or
  112  responsibilities of the parent and, only if there is no living
  113  parent with intact parental rights, to the rights or
  114  responsibilities of the legal custodian who has assumed the role
  115  of the parent.
  116         (76) “Unmarried biological father means the child’s
  117  biological father who is not married to the child’s mother at
  118  the time of conception or birth of the child and who, before the
  119  advisory hearing is held on a petition to terminate parental
  120  rights conducted pursuant to s. 39.808, has not been adjudicated
  121  by a court to be the legal father of the child or has not
  122  executed an affidavit pursuant to s. 382.013(2)(c). There is no
  123  unmarried biological father if the mother is married at the time
  124  of conception or the birth of the child unless otherwise ordered
  125  by the dependency court.
  126         Section 3. Subsection (6) of section 39.502, Florida
  127  Statutes, is amended to read:
  128         39.502 Notice, process, and service.—
  129         (6)(a) It is the duty of the petitioner or moving party to
  130  notify all participants and parties known to the petitioner or
  131  moving party of all hearings subsequent to the initial hearing
  132  unless notice is contained in prior court orders and these
  133  orders were provided to the participant or party. Proof of
  134  notice or provision of orders may be provided by certified mail
  135  with a signed return receipt.
  136         (b)1. Notice of the petition for dependency shall be
  137  individually served upon any known and locatable unmarried
  138  biological father who has been identified before a court that he
  139  is the child’s father or who has filed a notarized claim of
  140  paternity form with the Florida Putative Father Registry.
  141         2. Service of the notice of the petition for dependency is
  142  not required if the unmarried biological father signs an
  143  affidavit of nonpaternity or consents to termination of his
  144  parental rights and such affidavit or consent is accepted by the
  145  department.
  146         3. The recipient of the notice may waive service of process
  147  by executing a waiver and acknowledging receipt of the notice.
  148         (c) The notice of the petition for dependency must
  149  specifically state that, if the unmarried biological father
  150  desires to contest the dependency petition and assert his
  151  parental rights, the unmarried biological father must, within 30
  152  days after receipt of service:
  153         1. File a claim of paternity with the Florida Putative
  154  Father Registry maintained by the Office of Vital Statistics;
  155         2. Commence to legally establish his rights to the child
  156  pursuant to this chapter;
  157         3. File a verified response with the court in which the
  158  unmarried biological father submits to the jurisdiction of the
  159  court, pledges his commitment to raise the child, and requests
  160  the court to calculate and order child support from the
  161  unmarried biological father;
  162         4. Provide support for the child as calculated by the court
  163  pursuant to s. 61.30; and
  164         5. Establish a substantial relationship with the child
  165  within the parameters established by court order. An unmarried
  166  biological father must develop a substantial relationship with
  167  the child by taking some measure of responsibility for the child
  168  and the child’s future. The unmarried biological father must:
  169         a. Visit the child at least monthly if the unmarried
  170  biological father is physically and financially able to do so
  171  and is not prevented from doing so by the person or authorized
  172  agency having lawful custody of the child; or
  173         b. Maintain regular communication with the child or with
  174  the person or authorized agency having lawful custody of the
  175  child if the unmarried biological father is physically or
  176  financially unable to visit the child and is not prevented from
  177  maintaining regular communication with the child by the person
  178  or authorized agency having lawful custody of the child.
  179         (d) The unmarried biological father may not contest the
  180  petition for dependency or any subsequent petition for
  181  termination of parental rights and is not entitled to any
  182  further notice of any proceedings regarding the child, unless
  183  otherwise ordered by the court, if the unmarried biological
  184  father fails to:
  185         1. Timely and properly file a verified response with the
  186  court which contains a pledge of commitment to the child;
  187         2. File a claim of paternity form with the Florida Putative
  188  Father Registry;
  189         3. Legally establish his paternity of the child; or
  190         4. Provide support for the child in an amount determined
  191  pursuant to s. 61.30.
  192         (e) If the unmarried biological father is not identified
  193  during the course of the court inquiry, the unmarried biological
  194  father’s claim that he did not receive actual notice of the
  195  dependency proceeding is not a defense to a finding that the
  196  child is dependent.
  197         Section 4. Subsections (1) and (8) of section 39.503,
  198  Florida Statutes, are amended to read:
  199         39.503 Identity or location of parent unknown; special
  200  procedures.—
  201         (1) If the identity or location of a parent is unknown and
  202  a petition for dependency or shelter is filed, the court shall
  203  conduct the following inquiry of the parent or legal custodian
  204  who is available, or, if no parent or legal custodian is
  205  available, of any relative or custodian of the child who is
  206  present at the hearing and likely to have the information:
  207         (a) Whether the mother of the child was married at the
  208  probable time of conception of the child or at the time of birth
  209  of the child.
  210         (b) Whether the mother was cohabiting with a male at the
  211  probable time of conception of the child.
  212         (c) Whether the mother has received payments or promises of
  213  support with respect to the child or because of her pregnancy
  214  from a man who claims to be the father.
  215         (d) Whether the mother has named any man as the father on
  216  the birth certificate of the child or in connection with
  217  applying for or receiving public assistance.
  218         (e) Whether any man has acknowledged or claimed paternity
  219  of the child in a jurisdiction in which the mother resided at
  220  the time of or since conception of the child, or in which the
  221  child has resided or resides.
  222         (f) Whether any man was married to the mother of the child
  223  at the time of conception or birth of the child.
  224         (g) Whether any man has filed an affidavit of paternity
  225  pursuant to s. 382.013(2)(c).
  226         (h) Whether any man has adopted the child.
  227         (i) Whether any man has been adjudicated by a court as the
  228  father of the child.
  229         (j) Whether the mother, under oath, has identified any man
  230  as the father of the child to a representative of the
  231  department.
  232         (8)(a) If the inquiry and diligent search identifies a
  233  prospective parent, that person must be given the opportunity to
  234  become a party to the proceedings by completing a sworn
  235  affidavit of parenthood and filing it with the court or the
  236  department. A prospective parent may file who files a sworn
  237  affidavit of parenthood only if while the child does not have
  238  two legally recognized parents. If a child has two legally
  239  recognized parents, the prospective parent must seek to
  240  establish paternity pursuant to chapter 742 and substitute his
  241  parental rights for the rights of the other father. The
  242  dependency court may consider the petition to establish
  243  paternity pursuant to chapter 742 as part of the dependency
  244  proceedings, including entry of an order or judgment
  245  establishing paternity is a dependent child but no later than at
  246  the time of or prior to the adjudicatory hearing in any
  247  termination of parental rights proceeding for the child shall be
  248  considered a parent for all purposes under this section unless
  249  the other parent contests the determination of parenthood. If
  250  the known parent contests the recognition of the prospective
  251  parent as a parent, the prospective parent shall not be
  252  recognized as a parent until proceedings under chapter 742 have
  253  been concluded. However, the prospective parent shall continue
  254  to receive notice of hearings as a participant pending results
  255  of the chapter 742 proceedings.
  256         (b) If no parent objects to a request to establish
  257  paternity and substitute his parental rights, the court may
  258  enter an order substituting the prospective parent’s parental
  259  rights to the child for the right of the currently recognized
  260  father, order the Office of Vital Statistics to amend the
  261  child’s birth record, and order the prospective parent to pay
  262  support for the child. If either present parent objects to
  263  substitution of the prospective parent’s parental rights, the
  264  prospective parent may proceed to litigate parental rights
  265  pursuant to chapter 742. The dependency court may consider the
  266  petition to establish paternity pursuant to chapter 742 as part
  267  of the dependency proceedings, including entry of an order or
  268  judgment establishing paternity.
  269         (c)If the prospective parent does not file a sworn
  270  affidavit of parenthood, or if the other parent contests the
  271  claim of parenthood, the court may, after considering the best
  272  interest of the child, order scientific testing to determine
  273  paternity of the child. Test results are admissible in evidence
  274  and should be weighed along with other evidence of the paternity
  275  of the alleged father unless the statistical probability of
  276  paternity equals or exceeds 95 percent. A statistical
  277  probability of paternity of 95 percent or more creates a
  278  rebuttable presumption, as defined by s. 90.304, that the
  279  alleged father is the biological father of the child. If a party
  280  fails to rebut the presumption of paternity which arose from the
  281  statistical probability of paternity of 95 percent or more, the
  282  court may enter a summary judgment of paternity. If the test
  283  results show the alleged father is not the biological father,
  284  the prospective parent is no longer entitled to notice of the
  285  proceedings. The court shall assess the cost of the paternity
  286  determination as a cost of litigation.
  287         Section 5. Subsection (3) of section 39.801, Florida
  288  Statutes, is amended to read:
  289         39.801 Procedures and jurisdiction; notice; service of
  290  process.—
  291         (3) Before the court may terminate parental rights, in
  292  addition to the other requirements set forth in this part, the
  293  following requirements must be met:
  294         (a) Notice of the date, time, and place of the advisory
  295  hearing for the petition to terminate parental rights and a copy
  296  of the petition must be personally served upon the following
  297  persons, specifically notifying them that a petition has been
  298  filed:
  299         1. The parents of the child.
  300         2. The legal custodians of the child.
  301         3. If the parents who would be entitled to notice are dead
  302  or unknown, a living relative of the child, unless upon diligent
  303  search and inquiry no such relative can be found.
  304         4. Any person who has physical custody of the child.
  305         5. Any grandparent entitled to priority for adoption under
  306  s. 63.0425.
  307         6. Any prospective parent who has been identified under s.
  308  39.503 or s. 39.803.
  309         7. The guardian ad litem for the child or the
  310  representative of the guardian ad litem program, if the program
  311  has been appointed.
  312  
  313  The document containing the notice to respond or appear must
  314  contain, in type at least as large as the type in the balance of
  315  the document, the following or substantially similar language:
  316  “FAILURE TO PERSONALLY APPEAR AT THIS ADVISORY HEARING
  317  CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL RIGHTS OF
  318  THIS CHILD (OR CHILDREN). IF YOU FAIL TO APPEAR ON THE DATE AND
  319  TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE
  320  CHILD OR CHILDREN NAMED IN THE PETITION ATTACHED TO THIS
  321  NOTICE.”
  322         (b)1. Notice of the petition for termination of parental
  323  rights shall be individually served upon any known and locatable
  324  unmarried biological father who has been identified before a
  325  court or who has filed a notarized claim of paternity form with
  326  the Florida Putative Father Registry.
  327         2. Service of the notice of the petition for termination of
  328  parental rights is not required if the unmarried biological
  329  father signs an affidavit of nonpaternity or consents to
  330  termination of his parental rights and such affidavit or consent
  331  is accepted by the department.
  332         3. The recipient of the notice may waive service of process
  333  by executing a waiver and acknowledging receipt of the notice.
  334         (c) The notice of petition for termination of parental
  335  rights must specifically state that, if the unmarried biological
  336  father desires to contest the petition and assert his parental
  337  rights, he must, within 30 days after receipt of service:
  338         1. File a claim of paternity form with the Florida Putative
  339  Father Registry.
  340         2. Commence to legally establish his rights to the child
  341  pursuant to the provisions of this chapter.
  342         3. File a verified response with the court in which the
  343  unmarried biological father submits to the jurisdiction of the
  344  court, pledges his commitment to raise the child, and requests
  345  the court to calculate and order child support from the
  346  unmarried biological father.
  347         4. Provide support for the child as calculated by the court
  348  pursuant to s. 61.30.
  349         5. Establish a substantial relationship with the child
  350  within the parameters established by court order. An unmarried
  351  biological father must develop a substantial relationship with
  352  the child by taking some measure of responsibility for the child
  353  and the child’s future. The unmarried biological father must:
  354         a. Visit the child at least monthly if the unmarried
  355  biological father is physically and financially able to do so
  356  and is not prevented from doing so by the person or authorized
  357  agency having lawful custody of the child; or
  358         b. Maintain regular communication with the child or with
  359  the person or authorized agency having lawful custody of the
  360  child if the unmarried biological father is physically or
  361  financially unable to visit the child and is not prevented from
  362  maintaining regular communication with the child by the person
  363  or authorized agency having lawful custody of the child.
  364         (d) The unmarried biological father may not contest the
  365  petition for termination of parental rights and is not entitled
  366  to any further notice of any proceedings regarding the child,
  367  unless otherwise ordered by the court, if the unmarried
  368  biological father fails to do any of the following:
  369         1. Timely and properly file a verified response with the
  370  court which contains a pledge of commitment to the child;
  371         2. File a claim of paternity form with the Florida Putative
  372  Father Registry;
  373         3. Legally establish his paternity to the child; and
  374         4. Provide support for the child in an amount to be
  375  determined pursuant to s. 61.30.
  376         (e)If an unmarried biological father is not identified
  377  during the course of the court inquiry, the unmarried biological
  378  father’s claim that he did not receive actual notice of the
  379  termination proceeding is not a defense to the petition and does
  380  not serve as grounds for a finding that the proceeding is
  381  otherwise defective.
  382         (f)(b) If a party required to be served with notice as
  383  prescribed in paragraph (a) cannot be served, notice of hearings
  384  must be given as prescribed by the rules of civil procedure, and
  385  service of process must be made as specified by law or civil
  386  actions.
  387         (g)(c) Notice as prescribed by this section may be waived,
  388  in the discretion of the judge, with regard to any person to
  389  whom notice must be given under this subsection if the person
  390  executes, before two witnesses and a notary public or other
  391  officer authorized to take acknowledgments, a written surrender
  392  of the child to a licensed child-placing agency or the
  393  department.
  394         (h)(d) If the person served with notice under this section
  395  fails to personally appear at the advisory hearing, the failure
  396  to personally appear shall constitute consent for termination of
  397  parental rights by the person given notice. If a parent appears
  398  for the advisory hearing and the court orders that parent to
  399  personally appear at the adjudicatory hearing for the petition
  400  for termination of parental rights, stating the date, time, and
  401  location of said hearing, then failure of that parent to
  402  personally appear at the adjudicatory hearing shall constitute
  403  consent for termination of parental rights.
  404         Section 6. Subsection (1) of section 39.803, Florida
  405  Statutes, is amended to read:
  406         39.803 Identity or location of parent unknown after filing
  407  of termination of parental rights petition; special procedures.—
  408         (1) If the identity or location of a parent is unknown and
  409  a petition for termination of parental rights is filed, the
  410  court shall conduct the following inquiry of the parent who is
  411  available, or, if no parent is available, of any relative,
  412  caregiver, or legal custodian of the child who is present at the
  413  hearing and likely to have the information:
  414         (a) Whether the mother of the child was married at the
  415  probable time of conception of the child or at the time of birth
  416  of the child.
  417         (b) Whether the mother was cohabiting with a male at the
  418  probable time of conception of the child.
  419         (c) Whether the mother has received payments or promises of
  420  support with respect to the child or because of her pregnancy
  421  from a man who claims to be the father.
  422         (d) Whether the mother has named any man as the father on
  423  the birth certificate of the child or in connection with
  424  applying for or receiving public assistance.
  425         (e) Whether any man has acknowledged or claimed paternity
  426  of the child in a jurisdiction in which the mother resided at
  427  the time of or since conception of the child, or in which the
  428  child has resided or resides.
  429         (f) Whether any man was married to the mother of the child
  430  at the time of conception or birth of the child.
  431         (g) Whether any man has filed an affidavit of paternity
  432  pursuant to s. 382.013(2).
  433         (h) Whether any man has adopted the child.
  434         (i) Whether any man has been adjudicated by a court as the
  435  father of the child.
  436         (j) Whether the mother, under oath, has identified any man
  437  as the father of the child to a representative of the
  438  department.
  439         Section 7. This act shall take effect July 1, 2011.