Current Through March 2015

Statutes

Website for Statutes:http://www.flsenate.gov/Laws/Statutes

Citation:

• Adoption: Title VI, Chapter 63
• Child Protection: Title V, Chapter 39, Parts I through III
• Child Welfare: Title V, Chapter 39, Parts IV through XII
• Guardianship: Title V, Chapter 39, § 39.6221
• Youth Services: Title XXX, Chapter 409, § 409.1451

Regulation/Policy

Website for Administrative Code:https://www.flrules.org/gateway/Department.asp?DeptID=65

Citation: See Division Number 65CWebsite for Agency Policies:http://www.dcf.state.fl.us/admin/publications/policies.shtml

Other Resources

Citation: Florida Rules of Court

Current Through April 2016

Circumstances That Constitute Witnessing

Citation: Ann. Stat. § 921.0024  In criminal law: It is considered domestic violence in the presence of a child if an offender is convicted of a primary offense of domestic violence, and that offense was committed in the presence of a child under age 16 who is a family or household member with the victim or perpetrator.

Consequences

Citation: Ann. Stat. § 921.0024  When domestic violence is committed in the presence of a child, the subtotal sentence points are multiplied by 1.5.

Current Through February 2016

Physical Abuse

Citation: Ann. Stat. § 39.01‘Abuse’ means any willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause a child’s physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions.

‘Harm’ to a child’s health or welfare can occur when a person inflicts or allows to be inflicted upon the child physical, mental, or emotional injury. Such injury includes, but is not limited to:

• Willful acts that produce specific serious injuries
• Purposely gives a child poison, alcohol, drugs, or other substances that substantially affect the child’s behavior, motor coordination, or judgment or that result in sickness or internal injury
• Leaves a child without adult supervision or arrangement appropriate for the child’s age or mental or physical condition
• Uses inappropriate or excessively harsh discipline that is likely to result in physical injury, mental injury as defined in this section, or emotional injury
• Commits or allows to be committed sexual battery against the child
• Allows, encourages, or forces the sexual exploitation of a child
• Abandons the child
• Neglects the child
• Exposes a child to a controlled substance or alcohol
• Uses mechanical devices, unreasonable restraints, or extended periods of isolation to control a child
• Engages in violent behavior that demonstrates a wanton disregard for the presence of a child and could reasonably result in serious injury to the child
• Negligently fails to protect a child in his or her care from inflicted physical, mental, or sexual injury caused by the acts of another
• Has allowed a child’s sibling to die as a result of abuse, abandonment, or neglect
• Makes the child unavailable for the purpose of impeding or avoiding a protective investigation unless the court determines that the parent, legal custodian, or caregiver was fleeing from a situation involving domestic violence

Neglect

Citation: Ann. Stat. § 39.01  ‘Neglect’ occurs when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment; or a child is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired. Neglect of a child includes acts or omissions.

‘Medical neglect’ means the failure to provide or allow needed care as recommended by a health-care practitioner for a physical injury, illness, medical condition, or impairment; or the failure to seek timely and appropriate medical care for a serious health problem that a reasonable person would have recognized as requiring professional medical attention. Medical neglect does not occur if the parent or legal guardian of the child has made reasonable attempts to obtain necessary health-care services or the immediate health condition giving rise to the allegation of neglect is a known and expected complication of the child’s diagnosis or treatment, and:

• The recommended care offers limited net benefit to the child, and the morbidity or other side effects of the treatment may be considered to be greater than the anticipated benefit.
• The parent or legal guardian received conflicting medical recommendations for treatment from multiple practitioners and did not follow all recommendations.

Sexual Abuse/Exploitation

Citation: Ann. Stat. § 39.01  ‘Sexual abuse of a child’ means one or more of the following acts:

• Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen
• Any sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person
• Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose, not including any act intended for a valid medical purpose
• The intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of either the child or the perpetrator, not including:
  • An act that may reasonably be construed to be a normal caregiver responsibility or any interaction with or affection for a child
  • An act intended for a valid medical purpose
• The intentional masturbation of the perpetrator’s genitals in the presence of a child
• The intentional exposure of the perpetrator’s genitals in the presence of a child, or any other sexual act intentionally perpetrated in the presence of a child, if such exposure or sexual act is for the purpose of sexual arousal or gratification, aggression, degradation, or other similar purpose
• The sexual exploitation of a child, including:
  • A child offering to engage in or engaging in prostitution
  • Allowing, encouraging, or forcing a child to solicit for or engage in prostitution, engage in a sexual performance, or participate in the trade of human trafficking as provided in § 787.06(3)(g)

‘Harm’ to a child can occur when any person:

• Commits or allows to be committed sexual battery or lewd acts against the child
• Allows, encourages, or forces the sexual exploitation of a child, including engaging in prostitution or a sexual performance
• Exploits a child or allows a child to be exploited

Emotional Abuse

Citation: Ann. Stat. § 39.01  ‘Mental injury’ means an injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the ability to function within the normal range of performance and behavior.

Abandonment

Citation: Ann. Stat. § 39.01
‘Abandoned’ or ‘abandonment’ occurs when the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver, while being able, makes no provision for the child’s support and has failed to establish or maintain a substantial and positive relationship with the child.

For purposes of this subsection, ‘establish or maintain a substantial and positive relationship’ includes, but is not limited to, frequent and regular contact with the child through frequent and regular visitation or frequent and regular communication to or with the child and the exercise of parental rights and responsibilities. Marginal efforts and incidental or token visits or communications are not sufficient to establish or maintain a substantial and positive relationship with a child. A man’s acknowledgement of paternity of the child does not limit the period of time considered in determining whether the child was abandoned.

The term does not include a surrendered newborn infant as described in § 383.50, a ‘child in need of services’ or a ‘family in need of services’ as defined in chapter 984. The incarceration of a parent, legal custodian, or caregiver responsible for a child’s welfare may support a finding of abandonment.

Standards for Reporting

Citation: Ann. Stat. § 39.201
A report is required when any person knows, or has reasonable cause to suspect that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care.

Persons Responsible for the Child

Citation: Ann. Stat. § 39.01  Responsible persons include the child’s parent or legal custodian or, in the absence of the parent or legal custodian, the child’s caregiver. The term ‘caregiver’ includes the parent, legal custodian, permanent guardian, adult household member, or other person responsible for a child’s welfare.

‘Other person responsible for a child’s welfare’ includes:

• The child’s legal guardian or foster parent
• An employee of a private school, public or private child daycare center, residential home, institution, facility, or agency
• A law enforcement officer employed in any facility, service, or program for children that is operated or contracted by the Department of Juvenile Justice
• Any other person legally responsible for the child’s welfare in a residential setting
• An adult sitter or relative entrusted with a child’s care

Exceptions

Citation: Ann. Stat. § 39.01  Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.

It shall not be considered neglect if failure to provide for the child is caused primarily by financial inability, unless actual services for relief have been offered to and rejected by the parent.

A parent legitimately practicing religious beliefs in accordance with a recognized church or religious organization who does not provide specific medical treatment for a child may not, for that reason alone, be considered a negligent parent. This exception does not:

• Eliminate the requirement that such a case be reported to the Department of Children and Family Services
• Prevent the department from investigating such a case
• Preclude a court from ordering, when the health of the child requires it, the provision of medical services by a physician or treatment by a duly accredited practitioner who relies solely on spiritual means for healing in accordance with the tenets and practices of a well-recognized church or religious organization

Current Through August 2013

Defined in Domestic Violence Civil Laws

Citation: Ann. Stat. § 741.28  ‘Domestic violence’ means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

Defined in Child Abuse Reporting and Child Protection Laws

Citation:This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

Citation:This issue is not addressed in the statutes reviewed.

Persons Included in the Definition

Citation: Ann. Stat. § 741.28  ‘Family or household member’ means:

• Spouses or former spouses
• Persons related by blood or marriage
• Persons who are presently residing together as if a family or who have resided together in the past as if a family
• Persons who are parents of a child in common regardless of whether they have been married

With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

Current Through February 2013

Individual Responsibility to Report

Citation: Ann. Stat. § 39.201; Admin. Code § 65C-29.002  Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall report such knowledge or suspicion to central abuse hotline of the Department of Children and Family Services.

Any person who knows, or who has reasonable cause to suspect, that a child is abused by an adult other than a parent, legal custodian, caregiver, or other person responsible for the child’s welfare also shall report such knowledge or suspicion to the department on the central abuse hotline.

In regulation: Professionally mandated reporters are required to provide their names to the abuse hotline when making a report of alleged child maltreatment. A report shall be accepted if it meets statutory criteria for acceptance even if the reporters wish to remain anonymous. Nonprofessionally mandated reporters are not required to provide their names for the acceptance of a report.

Content of Reports

Citation: Admin. Code § 65C-29.002  When a report is being accepted, the hotline counselor shall ask all reporters to provide the following information:

• Information regarding subjects of the report, including name, race, sex, date of birth, Social Security number, ethnicity, school, employment, address, phone number, and/or other acceptable means to locate the victim if the address is not known
• The relationship between the victim and the alleged perpetrator
• Names and contact information for any person who can provide assistance to the child or additional information about the family’s circumstances
• The type of maltreatment alleged and the nature and extent of harm suffered by the victim, including when the incident occurred or whether it is a chronic, ongoing situation
• Any known history of abuse, neglect, or abandonment of persons named in the report
• The risk of continued maltreatment and whether the alleged perpetrator continues to have access to the victim
• The current condition of the child
• Other children in the environment
• The name and occupation of the reporter, relationship between the child and the reporter, contact information for the reporter, and any other information the reporter believes will be of assistance

Reporting Suspicious Deaths

Citation: Ann. Stat. § 39.201  Any person required to report or investigate cases of suspected child abuse, abandonment, or neglect who has reasonable cause to suspect that a child died as a result of child abuse, abandonment, or neglect shall report his or her suspicion to the appropriate medical examiner. The medical examiner shall accept the report for investigation and shall report his or her findings, in writing, to the local law enforcement agency, the appropriate State attorney, and the department. Autopsy reports maintained by the medical examiner are not subject to the confidentiality requirements provided for in § 39.202.

Reporting Substance-Exposed Infants

Citation:This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

Citation: Ann. Stat. § 39.201  The department shall operate and maintain a central abuse hotline to receive all reports of suspected child maltreatment in writing, via fax, via web-based reports, via web-based chat, or through a single statewide toll-free telephone number, which any person may use to report known or suspected child abuse, abandonment, or neglect at any hour of the day or night, any day of the week.

Initial Screening Decisions

Citation: Ann. Stat. §§ 39.201; 39.301; Admin. Code § 65C-29.002Personnel at the department’s central abuse hotline shall determine if the report received meets the statutory definition of child abuse, abandonment, or neglect. Any report meeting one of these definitions shall be accepted for a protective investigation.

If the report involves child abuse by someone other than a caregiver, the report shall be transferred immediately to the appropriate county sheriff’s office. If the report involves the impregnation of a child under age 16 by a person age 21 or older, the report shall be made immediately to an appropriate law enforcement agency.

Upon receiving a report, the hotline shall determine if the report requires an immediate onsite protective investigation. For reports requiring an immediate onsite protective investigation, the hotline shall notify immediately the department to ensure that an onsite investigation is promptly initiated. For reports not requiring an immediate investigation, the hotline shall notify the department in sufficient time to allow for an investigation.

The department shall forward immediately allegations of criminal conduct to the appropriate law enforcement agency of the municipality or county in which the alleged conduct occurred.

In regulation: Hotline staff shall determine if the allegation in the report meets the statutory definition of child abuse, neglect, abandonment, or harm. Any allegation that meets one of these definitions shall be accepted for protective investigation. The alleged child victim must be younger than age 18 and be a resident of or located in Florida at the time of the allegation. A report shall not be accepted on an unborn or stillborn child.

The alleged perpetrator must be a caregiver, which is defined as a parent, legal custodian, an adult household member, or other person responsible for a child’s welfare.

Agency Conducting the Assessment/Investigation

Citation: Ann. Stat. § 39.301Protective investigations shall be performed by the department or its agent.

To the extent practical, all protective investigations involving a child shall be conducted or the work supervised by a single individual in order for there to be broad knowledge and understanding of the child’s history. When a new investigator is assigned to investigate a second and subsequent report involving a child, a multidisciplinary staffing shall be conducted that includes new and prior investigators, their supervisors, and appropriate private providers in order to ensure that, to the extent possible, there is coordination among all parties.

Upon receiving a written report of an allegation of criminal conduct from the department, the law enforcement agency shall review the information in the written report to determine whether a criminal investigation is warranted. If the law enforcement agency accepts the case for criminal investigation, it shall coordinate its investigative activities with the department, whenever feasible. If the law enforcement agency does not accept the case for criminal investigation, the agency shall notify the department in writing.

Assessment/Investigation Procedures

Citation: Ann. Stat. § 39.301  An assessment of safety and the perceived needs for the child and family shall be conducted in a manner that is sensitive to the social, economic, and cultural environment of the family.

For each report accepted for investigation, the department or the sheriff providing child protective investigative services shall perform the following child protective investigation activities to determine child safety:

• Conduct a review of all relevant, available information specific to the child and family and alleged maltreatment; family child welfare history; and local, State, and Federal criminal records checks
• Conduct face-to-face interviews with the child; any siblings; and the parents, legal custodians, or caregivers
• Assess the child’s residence, including:
  • The composition of the family and household
  • The name, address, date of birth, Social Security number, sex, and race of each child named in the report
  • Any siblings or other children in the same household or in the care of the same adults
  • The parents, legal custodians, caregivers, or any other adults in the same household
• Determine whether there is any indication that any child in the household has been abused, abandoned, or neglected; the nature and extent of present or prior injuries, abuse, or neglect, and any evidence thereof; and a determination as to the person or persons apparently responsible for the abuse, abandonment, or neglect, including the name, address, date of birth, Social Security number, sex, and race of each such person
• Complete an assessment of immediate child safety for each child based on available records, interviews, and observations with all household members and appropriate collateral contacts, including other professionals
• Document the present and impending dangers to each child based on the identification of inadequate protective capacity through utilization of a standardized safety assessment instrument

Timeframes for Completing Investigations

Citation: Ann. Stat. § 39.301  If it appears that the immediate safety or well-being of a child is endangered, that the family may flee or the child will be unavailable for purposes of conducting a child protective investigation, or that the facts otherwise so warrant, the department shall commence an investigation immediately, regardless of the time of day or night. In all other child abuse, abandonment, or neglect cases, a child protective investigation shall be commenced within 24 hours after receipt of the report.

The department shall complete its protective investigation within 60 days after receiving the initial report unless:

• There also is an active, concurrent criminal investigation that is continuing beyond the 60-day period and the closure of the protective investigation may compromise successful criminal prosecution of the child abuse or neglect case in which case, the closure date shall coincide with the closure date of the criminal investigation and any resulting legal action.
• In child death cases, the final report of the medical examiner is necessary for the department to close its investigation and the report has not been received within the 60-day period, in which case the report closure date shall be extended to accommodate the report.
• A child who is necessary to an investigation has been declared missing by the department, a law enforcement agency, or a court, in which case the 60-day period shall be extended until the child has been located or until sufficient information exists to close the investigation despite the unknown location of the child.

Classification of Reports

Citation:This issue is not addressed in the statutes or regulations reviewed.

Current Through April 2015

Citation: Ann. Stat. § 39.01(30)(a)(2), (g)  ‘Harm’ to a child’s health or welfare can occur when any person:

• Purposely gives a child poison, alcohol, drugs, or other substances that substantially affect the child’s behavior, motor coordination, judgment, or that result in sickness or internal injury
• Exposes a child to a controlled substance or alcohol

Exposure to a controlled substance or alcohol is established by:

• A test, administered at birth, that indicated that the child’s blood, urine, or meconium contained any amount of alcohol or a controlled substance or metabolites of such substances, the presence of which was not the result of medical treatment administered to the mother or the newborn infant
• Evidence of extensive, abusive, and chronic use of a controlled substance or alcohol by a parent when the child is demonstrably adversely affected by such usage

For the purposes of this paragraph, the terms ‘drugs’ and ‘controlled substances’ mean prescription drugs not prescribed for the child or the parent or not administered as prescribed, and controlled substances as outlined in Schedule I or Schedule II of § 893.03.

Current Through August 2014

Making The Appointment

Citation: Ann. Stat. §§ 39.822; 39.820; 39.4085, Fla. R. Juv. P. Rule 8.217(a)  A guardian ad litem (GAL) shall be appointed by the court at the earliest possible time to represent the child in any child abuse, abandonment, or neglect judicial proceeding, whether civil or criminal.

A GAL can be any of the following:

• A certified GAL program member
• A duly certified volunteer
• A staff attorney, contract attorney, or certified pro bono attorney working on behalf of a GAL program
• A staff member of a program office
• A court-appointed attorney
• A responsible adult who is appointed by the court to represent the best interests of a child involved in a proceeding

The legislature establishes the following goals for children in shelter or foster care: to have a GAL appointed to represent, within reason, their best interests and, where appropriate, an attorney ad litem appointed to represent their legal interests.

In court rules: At any stage of the proceedings, any party may request or the court may consider whether an attorney ad litem is necessary to represent any child alleged or found to be dependent, if one has not already been appointed.

The Use of Court-Appointed Special Advocates (CASAs)

Citation:This issue is not addressed in the statutes reviewed.

Qualifications/Training

Citation: Ann. Stat. §§ 39.821; 39.8296; 39.0139(4)(a)  The Guardian Ad Litem Program shall conduct a security background investigation before certifying a volunteer to serve. A security background investigation must include, but need not be limited to:

• Employment history checks
• Checks of references
• Local criminal records checks through local law enforcement agencies
• Statewide criminal records checks through the Department of Law Enforcement

A security background investigation conducted under this section must ensure that a person is not certified as a GAL if the person has an arrest awaiting final disposition for, been convicted of (regardless of adjudication), entered a plea of nolo contendere or guilty to, or been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under § 435.04. All applicants certified on or after July 1, 2010, must undergo a level 2 background screening pursuant to chapter 435 before being certified to serve as a GAL.

In analyzing and evaluating the information obtained in the security background investigation, the program must give particular emphasis to activities involving children, including, but not limited to, child-related criminal offenses or child abuse.

This section does not apply to a GAL who was certified before October 1, 1995, an attorney who is a member in good standing of the Florida Bar, or a licensed professional who has undergone a comparable security background investigation as a condition of licensure within 5 years of applying for certification as a GAL.

A training program shall be developed by the Statewide Guardian Ad Litem Office.

Attorneys ad litem appointed pursuant to the Keeping Children Safe Act, specifically pertaining to sexual abuse, shall have special training in the dynamics of child sexual abuse.

Specific Duties

Citation: Ann. Stat. § 39.822  The GAL shall be allowed to inspect and copy any records related to the best interests of the child who is the subject of the appointment including, but not limited to, confidential records. These records include, but are not limited to, medical, mental health, substance abuse, child care, education, law enforcement, court, social services, and financial records.

The GAL shall review all disposition recommendations and changes in placements, and he or she must be present at all critical stages of the dependency proceeding or submit a written report of recommendations to the court. Written reports must be filed with the court and served on all parties whose whereabouts are known at least 72 hours prior to the hearing.

How the Representative Is Compensated

Citation: Ann. Stat. § 39.822(2)  In cases in which the parents are financially able, the parent or parents of the child shall reimburse the court, in part or in whole, for the cost of provision of GAL services. Reimbursement to the individual providing GAL services shall not be contingent upon successful collection by the court from the parent or parents.

Current Through April 2014

When Case Plans Are Required

Citation: Ann. Stat. § 39.6011The Department of Children and Family Services shall prepare a draft of the case plan for each child receiving services under this chapter. A parent of a child may not be threatened or coerced with the loss of custody or parental rights for failing to admit in the case plan of abusing, neglecting, or abandoning a child. Participating in the development of a case plan is not an admission to any allegation of abuse, abandonment, or neglect, and it is not a consent to a finding of dependency or termination of parental rights.

A case plan must be prepared, but need not be submitted to the court, for a child who will be in care no longer than 30 days unless that child is placed in out-of-home care a second time within a 12-month period.

In each case in which a child has been placed in out-of-home care, a case plan must be prepared within 60 days after the department removes the child from the home and shall be submitted to the court before the disposition hearing for the court to review and approve.

The case plan must be filed with the court and copies provided to all parties, including the child, if appropriate, not less than 3 business days before the disposition hearing.

Who May Participate in the Case Planning Process

Citation: Ann. Stat. § 39.6011  The case plan must be developed in a face-to-face conference with the parent of the child, any court-appointed guardian ad litem, and, if appropriate, the child, and the temporary custodian of the child.

The parent may receive assistance from any person or social service agency in preparing the case plan. The social service agency, the department, and the court, when applicable, shall inform the parent of the right to receive such assistance, including the right to assistance of counsel.

If a parent is unwilling or unable to participate in developing a case plan, the department shall document that unwillingness or inability to participate. The unwillingness or inability of the parent to participate in developing a case plan does not preclude the filing of a petition for dependency or for termination of parental rights.

The parent, if available, must be provided a copy of the case plan and be advised that he or she may, at any time before the filing of a petition for termination of parental rights, enter into a case plan and that he or she may request judicial review of any provision of the case plan with which he or she disagrees at any court hearing set for the child.

Contents of a Case Plan

Ann. Stat. § 39.6011  The case plan must be written simply and clearly in English and, if English is not the principal language of the child’s parent, to the extent possible in the parent’s principal language. Each case plan must contain:

• A description of the identified problem being addressed, including the parent’s behavior or acts resulting in risk to the child and the reason for the intervention by the department
• The permanency goal
• If concurrent planning is being used, a description of the permanency goal of reunification with the parent or legal custodian in addition to a description of an alternate permanency goal, as described in § 39.01, with the following conditions:
  • If a child has not been removed from a parent, but is found to be dependent, even if adjudication of dependency is withheld, the court may leave the child in the current placement with maintaining and strengthening the placement as a permanency option.
  • If a child has been removed from a parent and is placed with a parent from whom the child was not removed, the court may leave the child in the placement with the parent from whom the child was not removed with maintaining and strengthening the placement as a permanency option.
  • If a child has been removed from a parent and is subsequently reunified with that parent, the court may leave the child with that parent with maintaining and strengthening the placement as a permanency option.
• The date the compliance period expires
• A written notice to the parent that failure of the parent to substantially comply with the case plan may result in the termination of parental rights, and that a material breach of the case plan may result in the filing of a petition for termination of parental rights sooner than the compliance period set forth in the case plan

The case plan must be signed by all parties, except that the signature of a child may be waived if the child is not of an age or capacity to participate in the case planning process. Signing the case plan constitutes an acknowledgement that the case plan has been developed by the parties and that they are in agreement as to the terms and conditions contained in the case plan. The refusal of a parent to sign the case plan does not prevent the court from accepting the case plan if the case plan is otherwise acceptable to the court.

The case plan must describe:

• The role of the foster parents or legal custodians when developing the services that are to be provided to the child, foster parents, or legal custodians
• The responsibility of the case manager to forward a relative’s request to receive notification of all proceedings and hearings
• The minimum number of face-to-face meetings to be held each month between the parents and the department’s family services counselors to review the progress of the plan, to eliminate barriers to progress, and to resolve conflicts or disagreements
• The parent’s responsibility for financial support of the child, including, but not limited to, health insurance and child support

When the permanency goal for a child is adoption, the case plan must include documentation of the steps the agency is taking to find an adoptive family or other permanent living arrangement for the child.

Current Through November 2012

Citation: Fla. Ann. Stat. § 39.6011(2) (LexisNexis through 2012 Spec. Sess.)  The case plan must be written simply and clearly in English and, if English is not the principal language of the child’s parent, to the extent possible in the parent’s principal language. Each case plan must contain:

• A description of the identified problem being addressed, including the parent’s behavior or acts resulting in risk to the child and the reason for the intervention by the department
• The permanency goal
• If concurrent planning is being used, a description of the permanency goal of reunification with the parent or legal custodian in addition to a description of one of the remaining permanency goals described in § 39.01

Citation: Fla. Stat. Ann. § 39.01(19), (52) (LexisNexis through 2012 Spec. Sess.)  ‘Concurrent planning’ means establishing a permanency goal in a case plan that uses reasonable efforts to reunify the child with the parent, while at the same time establishing another goal that must be one of the following options:

• Adoption when a petition for termination of parental rights has been filed or will be filed
• Permanent guardianship of a dependent child under § 39.6221
• Permanent placement with a fit and willing relative under § 39.6231
• Placement in another planned permanent living arrangement under § 39.6241

The permanency goal also is the case plan goal. If concurrent case planning is being used, reunification may be pursued at the same time that another permanency goal is pursued.

Citation: Fla. Stat. Ann. § 39.701(10)(e) (LexisNexis through 2012 Spec. Sess.)  Within 6 months after the date that the child was placed in shelter care, the court shall conduct a judicial review hearing to review the child’s permanency goal as identified in the case plan. At the hearing, the court shall make findings regarding the likelihood of the child’s reunification with the parent or legal custodian within 12 months after the removal of the child from the home. If the court makes a written finding that it is not likely that the child will be reunified with the parent or legal custodian within 12 months after the child was removed from the home, the Department of Children and Family Services must file with the court and serve on all parties a motion to amend the case plan under § 39.6013 and declare that it will use concurrent planning for the case plan. The department must file the motion within 10 business days after receiving the written finding of the court. The department must attach the proposed amended case plan to the motion. If concurrent planning is already being used, the case plan must document the efforts the department is taking to complete the concurrent goal.

Current Through January 2016

OUR COURSE TEACHES YOU HOW TO FILE A MOTION  IN CPS JUVENILE COURT

Schedule of Hearings

Citation: Ann. Stat. §§ 39.701; 39.621  Hearings shall be held to review the status of the child:

• At least every 6 months until the child reaches permanency status
• No later than 90 days after the date of the disposition hearing or after the date of the hearing at which the court approves the case plan, whichever comes first
• No later than 6 months after the date the child was removed from the home
• No later than 6 months after the date that the child was placed in shelter care to review the child’s permanency goal as identified in the case plan
• At minimum, 6 months following the reunification of the child with his or her parent(s) to determine whether supervision by the Department of Children and Family Services and the court’s jurisdiction shall continue or be terminated
• If the child is placed in the custody of the department or a licensed child-placing agency for the purpose of adoptive placement, every 6 months until the adoption is finalized
• Within 90 days after a child’s 17th birthday and as necessary during the year prior to the child’s 18th birthday

A permanency hearing must be held:

• No later than 12 months after the date the child was removed from the home
• No later than 6 months after the child was placed in shelter care
• No later than 30 days after a court determines that reasonable efforts to return a child to either parent are not required
• At least every 12 months for any child who continues to receive supervision from the department or awaits adoption

Persons Entitled to Attend Hearings

Citation: Ann. Stat. § 39.701  Notice of a judicial review hearing or a citizen review panel hearing must be served upon all of the following persons, if available to be served, regardless of whether the person was present at the previous hearing at which the date, time, and location of the hearing was announced:

• The social service agency charged with the supervision of care, custody, or guardianship of the child
• The foster parent or legal custodian in whose home the child resides
• The parents
• The guardian ad litem for the child
• The attorney for the child
• The child if he or she is age 13 or older
• Any preadoptive parent
• Such other persons as the court may direct

The attorney for the department shall notify a relative who submits a request for notification of all proceedings and hearings. The notice shall include the date, time, and location of the next judicial review hearing.

Determinations Made at Hearings

Citation: Ann. Stat. §§ 39.701; 39.621  The court shall seek to determine:

• If the parent was advised of the right to receive assistance from any person or agency in the preparation of the case plan and the right to have counsel present
• If a guardian ad litem needs to be appointed for the child
• Who holds the rights to make educational decisions for the child
• The compliance or lack of compliance of all parties with the case plan, including the parents’ compliance with financial obligations and child support orders
• The compliance or lack of compliance with a plan for contact between the parent and the child, including the frequency, duration, and results of the parent-child visitation and the reason for any noncompliance
• The frequency, kind, and duration of contacts among siblings who have been separated during placement
• Whether the child is receiving safe and proper care, including, but not limited to, the appropriateness of the child’s current placement in a setting that is as family-like and as close to the parent’s home as possible, and the appropriateness of the child’s current educational setting
• A projected likely date for the child’s return home or other permanent placement
• When applicable, the basis for the unwillingness or inability of the parent to become a party to a case plan
• For a child who is at least age 13 but not yet age 18, the adequacy of the child’s preparation for adulthood and Independent Living
• If amendments to the case plan are required

At the permanency hearing, the court shall determine:

• Whether the current permanency goal for the child is appropriate or should be changed
• When the child will achieve one of the permanency goals
• Whether the department has made reasonable efforts to finalize the permanency plan currently in effect

The best interests of the child is the primary consideration in determining the permanency goal for the child.

Permanency Options

Citation: Ann. Stat. § 39.621  The permanency goals available under this chapter, listed in order of preference, are:

• Reunification
• Adoption, if a petition for termination of parental rights has been or will be filed
• Permanent guardianship of a dependent child under § 39.6221
• Permanent placement with a fit and willing relative under § 39.6231
• Placement in another planned permanent living arrangement under § 39.6241

If a child will not be reunited with a parent, adoption is the primary permanency option. If the child is placed with a relative or with a relative of the child’s half-brother or half-sister as a permanency option, the court may recognize the permanency of this placement without requiring the relative to adopt the child.

If the court approves a permanency goal of permanent guardianship of a dependent child, placement with a fit and willing relative, or another planned permanent living arrangement, the court shall make findings as to why this permanent placement is established without adoption of the child to follow. If the court approves a permanency goal of another planned permanent living arrangement, the court shall document the compelling reasons for choosing this goal.

Current Through March 2016

Citation: Ann. Stat. § 39.810  For the purpose of determining the manifest best interests of the child, the court shall consider and evaluate all relevant factors, including, but not limited to:

• Any suitable permanent custody arrangement with a relative of the child
• The ability and disposition of the parent(s) to provide the child with food, clothing, medical care, other remedial care, and other material needs of the child
• The capacity of the parent(s) to care for the child to the extent that the child’s safety; well-being; and physical, mental, and emotional health will not be endangered upon the child’s return home
• The present mental and physical health needs of the child and such future needs of the child to the extent that such future needs can be ascertained based on the present condition of the child
• The love, affection, and other emotional ties existing between the child and the child’s parent(s), siblings, and other relatives, and the degree of harm to the child that would arise from the termination of parental rights and duties
• The likelihood of an older child remaining in long-term foster care upon termination of parental rights due to emotional or behavioral problems or any special needs of the child
• The child’s ability to form a significant relationship with a parental substitute and the likelihood that the child will enter into a more stable and permanent family relationship as a result of permanent termination of parental rights and duties
• The length of time that the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity
• The depth of the relationship existing between the child and the present custodian
• The reasonable preferences and wishes of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference
• The recommendations for the child provided by the child’s guardian ad litem or legal representative

The availability of a nonadoptive relative placement may not receive greater consideration than any other factor weighing on the manifest best interests of the child.

Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

Citation: Ann. Stat. § 39.806  Grounds for the termination of parental rights may be established under any of the following circumstances:

• The parent has abandoned the child.
• The parent’s conduct toward the child or other children threatens the life; safety; well-being; or physical, mental, or emotional health of the child, irrespective of the provision of services.
• The parent is incarcerated and one of the following applies:
  • The time for which the parent is expected to be incarcerated will constitute a substantial portion of the child’s minority.
  • The incarcerated parent has been determined by the court to be a violent, career criminal; a habitual, violent, felony offender; or a sexual predator.
  • The court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child.
• A child has been adjudicated dependent, a case plan has been filed with the court, and:
  • The child continues to be abused, neglected, or abandoned by the parents.
  • The parent has materially breached the case plan by making it unlikely that he or she will be able to substantially comply with the case plan before the time for compliance expires.
• The parent has engaged in egregious conduct or knowingly failed to prevent egregious conduct that threatens the life; safety; or physical, mental, or emotional health of the child or the child’s sibling.
• The parent has subjected the child to aggravated child abuse, sexual battery, sexual abuse, or chronic abuse.
• The parent or parents have committed murder or voluntary manslaughter of another child, or a felony assault that results in serious bodily injury to the child or another child, or aided or abetted, attempted, conspired, or solicited to commit such a murder or voluntary manslaughter or felony assault.
• The parental rights of the parent to a sibling have been terminated involuntarily.
• The parent has a history of extensive, abusive, and chronic use of alcohol or a controlled substance that renders him or her incapable of caring for the child and has refused or failed to complete available treatment for such use during the 3-year period immediately preceding the filing of the petition for termination of parental rights.
• A test administered at birth that indicated that the child’s blood, urine, or meconium contained any amount of alcohol or a controlled substance or metabolites of such substances, the presence of which was not the result of medical treatment administered to the mother or the newborn infant, and the biological mother of the child is the biological mother of at least one other child who was adjudicated dependent after a finding of harm to the child’s health or welfare due to exposure to a controlled substance or alcohol, after which the biological mother had the opportunity to participate in substance abuse treatment.
• On three or more occasions the child or another child of the parent has been placed in out-of-home care, and the conditions that led to the child’s out-of-home placement were caused by the parent.

Circumstances That Are Exceptions to Termination of Parental Rights

Citation: Ann. Stat. § 39.806  A petition may be filed when the parents have substantially failed to comply with a case plan for 12 months unless the failure to comply was due to:

• A lack of financial resources of the parent
• A failure of the Department of Children and Family Services to make reasonable efforts to reunify the parent and child

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Current Through February 2013

Infant’s Age

Citation: Ann. Stat. § 383.50

A newborn infant may be relinquished. The term ‘newborn infant’ means a child that a licensed physician reasonably believes to be approximately 7 days old or younger.

Who May Relinquish the Infant

Citation: Ann. Stat. § 383.50

The infant may be relinquished by his or her parent.

Who May Receive the Infant

Citation: Ann. Stat. § 383.50

The child may be left at a hospital, emergency medical services station, or fire station.

Responsibilities of the Safe Haven Provider

Citation: Ann. Stat. § 383.50

Each emergency medical services station or fire station staffed with full-time firefighters, emergency medical technicians, or paramedics shall accept any newborn infant left with a firefighter, emergency medical technician, or paramedic. They shall consider these actions as implied consent to and shall:

• Provide emergency medical services to the newborn infant to the extent he or she is trained to provide those services
• Arrange for the immediate transportation of the newborn infant to the nearest hospital having emergency services

Each hospital shall admit and provide all necessary emergency services and care to any newborn infant left with the hospital in accordance with this section. The hospital or any of its licensed health-care professionals shall consider these actions as implied consent for treatment, and a hospital accepting physical custody of a newborn infant has implied consent to perform all necessary emergency services and care.

Upon admitting a newborn infant, the hospital shall immediately contact a local licensed child-placing agency or alternatively contact the statewide central abuse hotline for the name of a licensed child-placing agency for purposes of transferring physical custody of the newborn infant. The hospital shall notify the licensed child-placing agency that a newborn infant has been left with the hospital and approximately when the licensed child-placing agency can take physical custody of the child. In cases where there is actual or suspected child abuse or neglect, the hospital or any of its licensed health-care professionals shall report the actual or suspected child abuse or neglect in accordance with statute in lieu of contacting a licensed child-placing agency.

Immunity for the Provider

Citation: Ann. Stat. § 383.50

A medical services provider, a fire department, or an employee or agent of a medical services provider or fire department is immune from criminal or civil liability for acting in good faith pursuant to this section. Nothing in this subsection limits liability for negligence.

The hospital or any of its licensed health-care professionals is immune from criminal or civil liability for acting in good faith in accordance with this section. Nothing in this subsection limits liability for negligence.

Protection for Relinquishing Parent

Citation: Ann. Stat. § 383.50

A newborn infant left at a hospital, emergency medical services station, or fire station in accordance with this section shall not be deemed abandoned and is not subject to reporting and investigation requirements, unless there is actual or suspected child abuse or until the Department of Children and Family Services takes physical custody of the child.

A criminal investigation shall not be initiated solely because a newborn infant is left at a hospital under this section, unless there is actual or suspected child abuse or neglect.

Except where there is actual or suspected child abuse or neglect, any parent who leaves a newborn infant with a firefighter, emergency medical technician, or paramedic at a fire station or emergency medical services station, or brings a newborn infant to an emergency room of a hospital and expresses an intent to leave the newborn infant and not return, has the absolute right to remain anonymous and to leave at any time and may not be pursued or followed unless the parent seeks to reclaim the newborn infant.

Effect on Parental Rights

Citation: Ann. Stat. § 383.50

There is a presumption that the parent who leaves the newborn infant in accordance with this section intended to leave the newborn infant and consented to termination of parental rights.

A parent of a newborn infant left at a hospital, emergency medical services station, or fire station may claim his or her newborn infant up until the time the court enters a judgment terminating his or her parental rights. A claim to the newborn infant must be made to the entity that has physical or legal custody of the newborn infant or to the circuit court before which proceedings involving the newborn infant are pending.

Current Through December 2014

Definitions

Citation: Ann. Stat. § 39.01  The term ‘permanent guardian’ means the relative or other adult in a permanent guardianship of a dependent child under § 39.6221.

‘Permanent guardianship of a dependent child’ means a legal relationship that a court creates under § 39.6221 between a child and a relative or other adult approved by the court that is intended to be permanent and self-sustaining through the transfer of parental rights with respect to the child relating to protection, education, care and control of the person, custody of the person, and decision-making on behalf of the child.

Purpose of Guardianship

Citation: Ann. Stat. § 39.5085  It is the intent of the legislature in enacting this section to:

• Provide for the establishment of procedures and protocols that serve to advance the continued safety of children by acknowledging the valued resource uniquely available through grandparents, relatives of children, and specified nonrelatives of children
• Recognize family relationships in which a grandparent or other relative is the head of a household that includes a child otherwise at risk of foster care placement
• Enhance family preservation and stability by recognizing that most children in such placements with grandparents and other relatives do not need intensive supervision of the placement by the courts or by the Department of Children and Families
• Recognize that permanency in the best interests of the child can be achieved through a variety of permanency options, including permanent guardianship under § 39.6221 if the guardian is a relative, that will achieve permanency and stability for many children who are otherwise at risk of foster care placement because of abuse, abandonment, or neglect, but who may successfully be able to be placed by the dependency court in the care of such relatives
• Reserve the limited casework and supervisory resources of the courts and the department for those cases in which children do not have the option for safe, stable care within the family

A Guardian’s Rights and Responsibilities

Citation: Ann. Stat. § 39.6221  The court shall give the permanent guardian a separate order establishing the authority of the permanent guardian to care for the child and shall provide any other information the court deems proper to persons who are not parties to the proceeding as necessary, notwithstanding the confidentiality provisions of § 39.202.

A permanent guardianship of a dependent child established under this chapter is not a plenary guardianship and is not subject to the requirements of chapter 744.

Placement of a child in a permanent guardianship does not terminate the parent-child relationship, including:

• The right of the child to inherit from his or her parents
• The parents’ right to consent to the child’s adoption
• The parents’ responsibility to provide financial, medical, and other support for the child as ordered by the court

Qualifying the Guardian

Citation: Ann. Stat. § 39.521(2)(r)  If the child has been removed from the home and will be remaining with a relative, parent, or other adult approved by the court, a home study report must be completed. The department shall conduct the study, which must include, at a minimum:

• An interview with the proposed legal custodians to assess their ongoing commitment and ability to care for the child
• Records checks through the State Automated Child Welfare Information System (SACWIS), and local and statewide criminal and juvenile records checks through the Department of Law Enforcement, on all household members age 12 or older
• Fingerprint-based checks of any household members who are age 18 or older that are forwarded to the Federal Bureau of Investigation for State and national criminal history information
• An assessment of the physical environment of the home
• A determination of the financial security of the proposed legal custodians
• A determination of suitable child care arrangements if the proposed legal custodians are employed outside of the home
• Documentation of counseling and information provided to the proposed legal custodians regarding the dependency process and possible outcomes
• Documentation that information regarding support services available in the community has been provided to the proposed legal custodians

Procedures for Establishing Guardianship

Citation: Ann. Stat. § 39.6221  If a court determines that reunification or adoption is not in the best interest of the child, the court may place the child in a permanent guardianship with a relative or other adult approved by the court if all of the following conditions are met:

• The child has been in the placement for no less than the preceding 6 months.
• The permanent guardian is suitable and able to provide a safe and permanent home for the child.
• The court determines that the child and the relative or other adult are not likely to need supervision or services of the department to ensure the stability of the permanent guardianship.
• The permanent guardian has made a commitment to provide for the child until the child reaches the age of majority and to prepare the child for adulthood and independence.
• The permanent guardian agrees to give notice of any change in his or her residential address or the residence of the child by filing a written document in the dependency file of the child with the clerk of the court.

Contents of a Guardianship Order

Citation: Ann. Stat. § 39.6221  In its written order establishing a permanent guardianship, the court shall:

• List the circumstances or reasons why the child’s parents are not fit to care for the child and why reunification is not possible by referring to specific findings of fact made in its order adjudicating the child dependent or by making separate findings of fact
• State the reasons why a permanent guardianship is being established instead of adoption
• Specify the frequency and nature of visitation or contact between the child and his or her parents
• Specify the frequency and nature of visitation or contact between the child and his or her grandparents
• Specify the frequency and nature of visitation or contact between the child and his or her siblings
• Require that the permanent guardian not return the child to the physical care and custody of the person from whom the child was removed without the approval of the court

Modification/Revocation of Guardianship

Citation: Ann. Stat. § 39.6221  The court shall retain jurisdiction over the case and the child shall remain in the custody of the permanent guardian unless the order creating the permanent guardianship is modified by the court. The court shall discontinue regular review hearings and relieve the department of the responsibility for supervising the placement of the child. Notwithstanding the retention of jurisdiction, the placement shall be considered permanency for the child.

Eligibility for Guardianship Subsidy

Citation: Ann. Stat. § 39.5085  The Department of Children and Families shall establish and operate the Relative Caregiver Program. The program shall, within the limits of available funding, provide financial assistance to:

• Relatives who are within the fifth degree by blood or marriage to the parent or stepparent of a child and who are caring full-time for that dependent child in the role of substitute parent as a result of a court’s determination of child abuse, neglect, or abandonment and the subsequent placement with the relative
• Nonrelatives who are willing to assume custody and care of a dependent child in the role of substitute parent as a result of a court’s determination of child abuse, neglect, or abandonment and the subsequent placement with the nonrelative caregiver

The court must find that the proposed placement is in the best interests of the child. The placement may be court-ordered temporary legal custody to the relative or nonrelative under protective supervision of the department or court-ordered placement in the home of a relative or nonrelative as a permanency option under § 39.6221 if the placement was made before July 1, 2006. The program shall offer financial assistance to caregivers who would be unable to serve in that capacity without the caregiver payment because of financial burden, thus exposing the child to the trauma of placement in a shelter or in foster care.

Caregivers who receive assistance under the program must be capable, as determined by a home study, of providing a physically safe environment and a stable, supportive home for the children under their care. They must assure that the children’s well-being is met, including, but not limited to, the provision of immunizations, education, and mental health services as needed.

Relatives or nonrelatives who qualify for and participate in the Relative Caregiver Program are not required to meet foster care licensing requirements under § 409.175.

Links to Agency Policies

Florida Department of Children and Families, Operating Procedures # 175-79, Relative Caregiver Program (PDF – 140 KB)

Current Through July 2013

Relative Placement for Foster Care and Guardianship

Citation: Ann. Stat. §§ 39.401; 39.5085; 39.6231  If the Department of Children and Family Services has taken a child into custody due to a finding that the child has been abused, neglected, or abandoned, the department shall review the facts supporting the removal with an attorney representing the department. The purpose of the review is to determine whether there is probable cause for the filing of a shelter petition.

If the facts are sufficient and the child has not been returned to the custody of the parent or legal custodian, the department shall file the petition and schedule a hearing to be held within 24 hours after the removal of the child. While awaiting the shelter hearing, the department may release the child to a parent, legal custodian, responsible adult relative, or the adoptive parent of the child’s sibling who shall be given priority consideration over a licensed placement, or a responsible adult approved by the department if this is in the best interests of the child.

When a child is taken into custody, the department shall request that the child’s parent, caregiver, or legal custodian disclose the names, relationships, and addresses of all parents and prospective parents and all next of kin of the child, so far as are known.

The Relative Caregiver Program provides financial assistance to relatives who are within the fifth degree, by blood or marriage, to the parent or stepparent of a child and who are caring for the child fulltime as a result of a court’s determination of child abuse, neglect, or abandonment.

If a court finds that reunification or adoption are not in the best interests of a child, the court may place the child with a fit and willing relative.

Requirements for Placement with Relatives

Citation: Ann. Stat. §§ 39.401; 39.5085; 39.6231  Placement of a child that is not in a licensed shelter must be preceded by a criminal history records check. In addition, the department may authorize placement of a housekeeper/homemaker in the home of a child alleged to be dependent until the parent or legal custodian assumes care of the child.

The court may place the child with a fit and willing relative as a permanency option if:

• The child has been in the placement for at least the preceding 6 months.
• The relative has made a commitment to provide for the child until the child reaches the age of majority and to prepare the child for adulthood and independence.
• The relative is suitable and able to provide a safe and permanent home for the child.
• The relative agrees to give notice of any change in his or her residence or the residence of the child by filing a written document with the clerk of court.

Relative caregivers must be capable, as determined by a home study, of providing a physically safe environment and a stable, supportive home for the children under their care. They must assure that the children’s well-being is met, including, but not limited to, the provision of immunizations, education, and mental health services as needed.

Relatives who qualify for and participate in the Relative Caregiver Program are not required to meet foster care licensing requirements.

In its written order placing the child with a fit and willing relative, the court shall:

• List the circumstances or reasons why reunification is not possible
• State the reasons why permanent placement with a fit and willing relative is being established instead of adoption
• Specify the frequency and nature of visits or contact between the child and his or her parents, grandparents, and siblings
• Require that the relative not return the child to the physical care and custody of the person from whom the child was removed without the approval of the court

Requirements for Placement of Siblings

Citation: Admin. Code §§ 65C-15.021(3)(d); 65C-30.006(5)  The child-placing agency shall select the most appropriate service for the child, consistent with the child’s and family’s need. When selecting care, the agency shall take into consideration a child’s racial, cultural, ethnic, religious heritage, and sibling relationships and shall preserve them to the extent possible without jeopardizing the child’s right to care or to a permanent family.

The caseworker has specific tasks in regard to a child’s case plan. The caseworker shall ensure that a schedule for visits between a child in an out-of-home placement and his or her separated siblings, parents, relatives, and other people of significance in the child’s life is addressed in the case plan.

Relatives Who May Adopt

Citation: Ann. Stat. § 63.0425  The child’s grandparent has the right to petition to adopt the child.

Requirements for Adoption by Relatives

Citation: Ann. Stat. §§ 63.0425; 63.112  The child must have lived with the grandparent for at least 6 months within the 24-month period immediately preceding the filing of a petition for termination of parental rights.

Unless ordered by the court, no report or recommendation is required when the child to be adopted is a relative of one of the adoptive parents.

Current Through March 2016

What Are Reasonable Efforts

Citation: Ann. Stat. § 39.521(1)(f)The term ‘reasonable efforts’ means the exercise of reasonable diligence and care by the Department of Children and Families to provide the services ordered by the court or delineated in the case plan.

When Reasonable Efforts Are Required

Citation: Ann. Stat. § 39.521(1)(f)  If the court finds that the prevention or reunification efforts by the department will allow the child to remain safely at home or be returned to the home safely, the court shall allow the child to remain in or return to the home after making a specific finding of fact that the reasons for removal have been remedied to the extent that the child’s safety, well-being, and physical, mental, and emotional health will not be endangered.

If the court places the child in an out-of-home placement, the disposition order must include a written determination that the child cannot remain at home safely with reunification or family preservation services and that removal of the child is necessary to protect the child. If the child is removed before the disposition hearing, the order must also include a written determination as to whether, after removal, the department made a reasonable effort to reunify the parent and child. The department has the burden of demonstrating that it made reasonable efforts.

The court shall determine whether reasonable efforts have been made by reviewing:

• Whether or not prevention or reunification services were indicated
• A written description of what appropriate and available prevention and reunification efforts were made
• Why further efforts could or could not have prevented or shortened the separation of the parent and child

A reasonable effort has been made if the appraisal of the home situation indicates the severity of conditions is such that reunification efforts were inappropriate.

When Reasonable Efforts Are NOT Required

Citation: Ann. Stat. §§ 39.521(1)(f); 39.806(1)  Reasonable efforts are not required when:

• The parent has breached the case plan.
• The parent has abandoned the child.
• The parent is incarcerated, the term of incarceration constitutes a significant portion of the child’s minority, and continuing the parental relationship with that parent would be harmful to the child.
• The parent’s conduct threatens the child’s life; safety; well-being; or physical, mental, or emotional health.
• The parent engaged in egregious conduct or had the opportunity to prevent and knowingly failed to prevent egregious conduct that threatened the child’s life; safety; or physical, mental, or emotional health.
• The parent has subjected the child or another child to aggravated child abuse, sexual battery, sexual abuse, or chronic abuse.
• The parent has committed the murder, manslaughter, aiding or abetting the murder, or conspiracy or solicitation to murder the other parent or another child, or a felony battery that resulted in serious bodily injury to the child or to another child.
• The parental rights of the parent to a sibling of the child have been terminated involuntarily.
• The parent has a history of extensive, abusive, and chronic use of alcohol or a controlled substance that makes him or her incapable of caring for the child and has refused or failed to complete available treatment.
• A newborn child had a positive test that indicated the presence of alcohol or a controlled substance, the presence of which was not the result of medical treatment to the mother or the newborn, and the mother is the birth mother of at least one other child who was found dependent due to exposure to a controlled substance or alcohol.
• On three or more occasions, the child or another child of the parent has been placed in out-of-home care, and the conditions that led to the child’s out-of-home placement were caused by the parent.
• The child was conceived as a result of an act of sexual battery.

Current Through February 2015

Who Can Nominate a Standby Guardian

Citation: Ann. Stat. § 744.3046  Both parents, natural or adoptive, if living, or the surviving parent, may nominate a preneed guardian of the person, property, or both, of the parent’s minor child.

How to Establish a Standby Guardian

Citation: Ann. Stat. § 744.3046  The preneed guardian is nominated by making a written declaration that names the guardian to serve if the minor’s last surviving parent becomes incapacitated or dies. An alternate to the guardian may also be nominated to act if the designated preneed guardian refuses to serve, renounces the appointment, dies, or becomes incapacitated after the death of the last surviving parent of the minor.

The written declaration must reasonably identify the designated preneed guardian and must be signed by the parents in the presence of at least two attesting witnesses present at the same time. The written declaration must also provide the full name as it appears on the birth certificate or as ordered by a court, date of birth, and Social Security number, if any, for each minor child.

The parent making the declaration must file the declaration with the clerk of the court.

How Standby Authority is Activated

Citation: Ann. Stat. § 744.3046  When a petition for incapacity of the last surviving parent or the appointment of a guardian upon the death of the last surviving parent is filed, the clerk shall produce the declaration. Production of the declaration in a proceeding to determine incapacity of the last surviving parent, or in a proceeding to appoint a guardian upon the death of the last surviving parent, constitutes a rebuttable presumption that the designated preneed guardian is entitled to serve as guardian. The court is not bound to appoint the designated preneed guardian if the designated preneed guardian is found to be unqualified to serve as guardian.

Within 20 days after assumption of duties as guardian, a preneed guardian shall petition for confirmation of appointment. If the court finds the preneed guardian to be qualified to serve as guardian, appointment of the guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with § 744.347 and shall file a bond, if the court requires a bond. Letters of guardianship must then be issued in the manner provided in § 744.345.

Involvement of the Noncustodial Parent

Citation: Ann. Stat. § 744.3046
Both parents or the surviving parent must consent.

Authority Relationship of the Parent and the Standby

Citation: Ann. Stat. § 744.3046  The preneed guardian shall assume the duties of guardian immediately upon an adjudication of incapacity of the last surviving parent or the death of the last surviving parent.

Withdrawing Guardianship

Citation: Ann. Stat. § 744.3046  If the preneed guardian refuses to serve, a written declaration appointing an alternate preneed guardian constitutes a rebuttable presumption that the alternate preneed guardian is entitled to serve as guardian. The court is not bound to appoint the alternate preneed guardian if the alternate preneed guardian is found to be unqualified to serve as guardian.