The Florida Senate

39.402  Placement in a shelter.--

(1)  Unless ordered by the court under this chapter, a child taken into custody shall not be placed in a shelter prior to a court hearing unless there are reasonable grounds for removal and removal is necessary to protect the child. Reasonable grounds for removal are as follows:

(a)  The child has been abused, neglected, or abandoned, or is suffering from or is in imminent danger of illness or injury as a result of abuse, neglect, or abandonment;

(b)  The custodian of the child has materially violated a condition of placement imposed by the court; or

(c)  The child has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care.

(2)  A child taken into custody may be placed or continued in a shelter only if one or more of the criteria in subsection (1) applies and the court has made a specific finding of fact regarding the necessity for removal of the child from the home and has made a determination that the provision of appropriate and available services will not eliminate the need for placement.

(3)  Whenever a child is taken into custody, the department shall immediately notify the parents or legal custodians, shall provide the parents or legal custodians with a statement setting forth a summary of procedures involved in dependency cases, and shall notify them of their right to obtain their own attorney.

(4)  If the department determines that placement in a shelter is necessary under subsections (1) and (2), the authorized agent of the department shall authorize placement of the child in a shelter.

(a)  The parents or legal custodians of the child shall be given actual notice of the date, time, and location of the emergency shelter hearing. If the parents are outside the jurisdiction of the court, are not known, or cannot be located or refuse or evade service, they shall be given such notice as best ensures their actual knowledge of the date, time, and location of the emergency shelter hearing. The person providing or attempting to provide notice to the parents or legal custodians shall, if the parents or legal custodians are not present at the hearing, advise the court either in person or by sworn affidavit, of the attempts made to provide notice and the results of those attempts.

(b)  At the emergency shelter hearing, the department must establish probable cause that reasonable grounds for removal exist and that the provision of appropriate and available services will not eliminate the need for placement.

(c)  The parents or legal custodians shall be given an opportunity to be heard and to present evidence at the emergency shelter hearing.

(5)

(a)  The circuit court, or the county court, if previously designated by the chief judge of the circuit court for such purpose, shall hold the shelter hearing.

(b)  The shelter petition filed with the court must address each condition required to be determined by the court in subsection (7).

(6)  A child may not be removed from the home or continued out of the home pending disposition if, with the provision of appropriate and available services, including services provided in the home, the child could safely remain at home. If the child's safety and well-being are in danger, the child shall be removed from danger and continue to be removed until the danger has passed. If the child has been removed from the home and the reasons for his or her removal have been remedied, the child may be returned to the home. If the court finds that the prevention or reunification efforts of the department will allow the child to remain safely at home, the court shall allow the child to remain in the home.

(7)

¹(a)  A child may not be held in a shelter longer than 24 hours unless an order so directing is entered by the court after an emergency shelter hearing. At the emergency shelter hearing, the court shall appoint a guardian ad litem to represent the child unless the court finds that such representation is unnecessary. The parents or legal custodians of the child shall be given such notice as best ensures their actual knowledge of the time and place of the hearing and shall be given an opportunity to be heard and to present evidence at the emergency shelter hearing.

(b)  The order for placement of a child in shelter care must identify the parties present at the hearing and must contain written findings:

1.  That placement in shelter care is necessary based on the criteria in subsections (1) and (2).

2.  That placement in shelter care is in the best interest of the child.

3.  That continuation of the child in the home is contrary to the welfare of the child because the home situation presents a substantial and immediate danger to the child which cannot be mitigated by the provision of preventive services.

4.  That based upon the allegations of the petition for placement in shelter care, there is probable cause to believe that the child is dependent.

5.  That the department has made reasonable efforts to prevent or eliminate the need for removal of the child from the home. A finding of reasonable effort by the department to prevent or eliminate the need for removal may be made and the department is deemed to have made reasonable efforts to prevent or eliminate the need for removal if:

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

b.  The appraisal of the home situation by the department indicates that the home situation presents a substantial and immediate danger to the child which cannot be mitigated by the provision of preventive services.

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

(c)  The failure to provide notice to a party or participant does not invalidate an order placing a child in a shelter if the court finds that the petitioner has made a good faith effort to provide such notice.

(d)  In the interval until the shelter hearing is held under paragraph (a), the decision to place the child in a shelter or release the child from a shelter lies with the protective investigator in accordance with subsection (3).

(8)  A child may not be held in a shelter under an order so directing for more than 21 days unless an order of adjudication for the case has been entered by the court. The parent, guardian, or custodian of the child must be notified of any order directing placement of the child in an emergency shelter and, upon request, must be afforded a hearing within 48 hours, excluding Sundays and legal holidays, to review the necessity for continued placement in the shelter for any time periods as provided in this section. At any arraignment hearing or determination of emergency shelter care, the court shall determine visitation rights absent a clear and convincing showing that visitation is not in the best interest of the child, and the court shall make a written determination as to whether the department has made a reasonable effort to prevent or eliminate the need for removal or continued removal of the child from the home. If the department has not made such an effort, the court shall order the department to provide appropriate and available services to assure the protection of the child in the home when such services are necessary for the child's safety. Within 7 days after the child is taken into custody, a petition alleging dependency must be filed and, within 14 days after the child is taken into custody, an arraignment hearing must be held for the child's parent, guardian, or custodian to admit, deny, or consent to the findings of dependency alleged in the petition.

(9)  A child may not be held in a shelter for more than 30 days after the entry of an order of adjudication unless an order of disposition under s. 39.41 has been entered by the court.

(10)  The time limitations in subsection (8) do not include:

(a)  Periods of delay resulting from a continuance granted at the request or with the consent of the child's counsel or the child's guardian ad litem, if one has been appointed by the court, or, if the child is of sufficient capacity to express reasonable consent, at the request or with the consent of the child's attorney or the child's guardian ad litem, if one has been appointed by the court, and the child.

(b)  Periods of delay resulting from a continuance granted at the request of the attorney for the department, if the continuance is granted:

1.  Because of an unavailability of evidence material to the case when the attorney for the department has exercised due diligence to obtain such evidence and there are substantial grounds to believe that such evidence will be available within 30 days. However, if the department is not prepared to present its case within 30 days, the parent or guardian may move for issuance of an order to show cause or the court on its own motion may impose appropriate sanctions, which may include dismissal of the petition.

2.  To allow the attorney for the department additional time to prepare the case and additional time is justified because of an exceptional circumstance.

(c)  Reasonable periods of delay necessary to accomplish notice of the hearing to the child's parents; however, the petitioner shall continue regular efforts to provide notice to the parents during such periods of delay.

(d)  Reasonable periods of delay resulting from a continuance granted at the request of the parent or legal custodian of a subject child.

(11)  The court shall review the necessity for a child's continued placement in a shelter in the same manner as the initial placement decision was made and shall make a determination regarding the continued placement:

(a)  Within 24 hours after any violation of the time requirements for the filing of a petition or the holding of an arraignment hearing as prescribed in subsection (8); or

(b)  Prior to the court's granting any delay as specified in subsection (10).

(12)  When any child is placed in a shelter under a court order following a shelter hearing, the court shall order the parents of the child, or the guardian of the child's estate, if possessed of assets which under law may be disbursed for the care, support, and maintenance of the child, to pay, to the department or institution having custody of the child, fees as established by the department. When the order affects the guardianship estate, a certified copy of the order shall be delivered to the judge having jurisdiction of the guardianship estate.

History.--s. 20, ch. 78-414; s. 13, ch. 80-290; s. 6, ch. 84-311; s. 5, ch. 85-80; s. 82, ch. 86-220; s. 5, ch. 87-133; s. 5, ch. 87-289; s. 12, ch. 88-337; s. 1, ch. 90-167; s. 7, ch. 90-208; s. 5, ch. 90-306; s. 3, ch. 92-158; s. 3, ch. 92-170; s. 7, ch. 92-287; s. 4, ch. 94-164; s. 58, ch. 94-209; s. 7, ch. 95-228; s. 3, ch. 97-96; s. 3, ch. 97-276.

¹Note.--Section 3, ch. 97-276, amended paragraph (a) of subsection (7), effective July 1, 1998, to read:

(7)(a)  A child may not be held in a shelter longer than 24 hours unless an order so directing is entered by the court after an emergency shelter hearing. At the emergency shelter hearing, the court shall appoint a guardian ad litem to represent the child unless the court finds that such representation is unnecessary. The parents or legal custodians of the child shall be given such notice as best ensures their actual knowledge of the time and place of the hearing and shall be given an opportunity to be heard and to present evidence at the emergency shelter hearing. The court shall require the parents or custodians present at the hearing to provide to the court on the record the names, addresses, and relationships of all parents, prospective parents, and next of kin of the child, so far as are known.