recent developments in dependency case & statutory...
TRANSCRIPT
Recent Developments in
Dependency Case & Statutory
Law
Stephanie Zimmerman, CLS Deputy Director & Statewide Director of Appeals
Ward Metzger, CLS Appellate Counsel for the Northeast Region
Dwight Slater, CLS Appellate Counsel for the Northwest Region
Let’s discuss the most significant
Florida appellate decisions released
since the last Summit
2
Ineffective Assistance of Counsel Adoption Dependency Least Restrictive Means Incarcerated Parent Abandonment Neglect ICPC Due Process
J.B. v. Fla. Dep’t of Children & Families,
SC14-1990, 2015 WL 4112321
(Fla. July 9, 2015)
Certified questions
Is the criminal standard of ineffective
assistance of counsel in Strickland applicable
to claims of ineffective assistance in TPR
proceedings?
Is any procedure available following the TPR to
raise claims of ineffective assistance of
counsel not apparent on the record.
Day before trial Mother’s counsel filed
a motion for continuance because the
father of the child had not yet been
identified.
Court denied motion.
Parent’s counsel indicated he was not
prepared to go forward.
Counsel indicated in opening
statement he was “really exhausted”
and “worn down.”
Trial proceeded.
TPR entered.
First DCA affirms, applying Strickland.
Parents have a right to counsel in both
dependency and TPR proceedings
under section 39.013.
Court previously held appointment of
counsel is not constitutionally required
in dependency proceedings but is
required in TPR proceedings.
Never previously expressly recognized
right to effective counsel.
DCAs struggled.
Prior attempt for clarification failed.
Compared and contrasted criminal
and TPR proceedings.
Interest in finality in TPR is
substantially heightened.
Rejected Strickland standard for a
higher burden.
There is a strong presumption that the
appointed attorney for an indigent
parent has provided reasonable,
professional assistance.
The parent claiming ineffective
assistance of appointed counsel has
the burden of proof to overcome that
presumption.
The parent must:
A) identify specific errors of
commission or omission that under
the totality of circumstances evidence
a deficiency in the exercise of
reasonable, professional judgment in
the case; and
The parent must:
B) establish that, cumulatively, the
deficient representation so prejudiced
the outcome of the TPR trial that but
for the deficient representation the
parent’s rights would not have been
terminated.
This requires a showing that goes
beyond the Strickland requirement
that confidence in the outcome is
undermined.
Special committee
Timely disposition is necessary in light
of harm to child when permanency is
unduly delayed.
Process must proceed to resolution
within a strictly limited timeframe.
At the end of TPR hearing, the court
must orally inform the parent of (1) the
right to appeal the termination of
parental rights order and (2) the right
to file a pro se motion in the circuit
court alleging ineffective assistance of
counsel if the court enters a judgment
terminating parental rights.
The final judgment must inform the
parent of the right to the effective
assistance of appointed counsel and
provide a brief explanation for filing a
claim.
Step 1: Pro se parent must file motion
alleging the ineffective assistance of
appointed counsel within 20 days of
entry of the TPR order by an indigent
parent. The parent is not entitled to
counsel’s assistance in preparing or
pursuing the motion.
Step 2: Rendition of the final order is
automatically tolled for appellate
purposes until the circuit court issues
an order on the pro se motion.
Step 3: The trial court must “promptly”
review the motion and order an
expedited record of the TPR
proceedings.
Step 4: The trial court must conduct
proceedings, including an expedited
evidentiary hearing if necessary, to
determine whether the motion should
be granted or denied.
Step 5: The trial court must enter an
order on the claims of ineffective
assistance of counsel within 25 days
after the motion is filed. If no order is
entered, the motion is deemed denied.
Step 6: The trial court must appoint
new counsel for the appeal.
Step 1: After the court enters a TPR
order, appointed counsel of the
indigent parent must discuss appellate
remedies and determine if the parent
wants to appeal. R. 8.517
Step 2: If the parent decides to appeal,
appointed counsel must also discuss
whether the parent intends to file an
IAC motion.
Step 3: If the parent indicates an
intention to file a motion, the attorney
must immediately move to withdraw.
Step 4: Before withdrawing, if the
parent decides to appeal the final
judgment, the appointed attorney
must certify that the parent chose to
appeal and counsel filed all 8.517
documents.
If a parent files a motion alleging
ineffective assistance of appointed
counsel after initially indicating that a
motion would not be filed, and
appointed appellate counsel is the
same as trial counsel, appellate
counsel must move to withdraw.
Any appeal from an order denying a
motion alleging the ineffective
assistance of counsel will be raised
and addressed within any appeal from
the TPR order.
In re Adoption of K.A.G.,
152 So. 3d 1271 (Fla. 5th DCA 2014)
Background: After Father killed Mother, DCF
placed child in custody of maternal aunt. Father
executed written consent for PGM to adopt.
Aunt filed counter petition to adopt in PGM’s
63.087 adoption proceeding. Court granted
PGM’s motion to strike. Aunt’s subsequent
motion to intervene was denied.
(cont’d)
Background: Trial court dismissed PGM’s
petition because there was not clear and
convincing evidence adoption was in best
interest. Court relied on considerations such as
the child’s needs and bonding with caregiver as
if it were an intervention.
(cont’d)
Holding: If court determines Father’s consent is
valid, court should apply section 63.124(4) to
consider child’s best interest with respect to
adoption. Not section 63.082(6). Look at
fitness of petition and whether the adoptive
home is suitable so that the child can grow up in
a stable, permanent, and loving environment.
(cont’d)
Holding: Burden is preponderance of the
evidence. Court has authority to appoint GAL in
an adoption proceeding. Trial court’s concern
that it could not consider same evidence as in
dependency or termination proceeding may be
resolved by Rule 12.003, which allows courts to
consolidate issues in Ch 63 and 39 and conduct
joint hearings.
In the Interest of Y.V.,
160 So. 3d 576 (Fla. 2015)
Background: Private dependency
petition alleged child was abused and
abandoned in Honduras. Child now
resides with uncle in FL. The parents
consented to an adjudication.
(cont’d)
Background: Trial court dismissed
dependency petition because events
occurred outside Florida and court
viewed petition as an attempt to
circumvent federal immigration laws.
(cont’d)
Holding: Reversed and remanded. No
provision in Chapter 39 requires events
giving rise to dependency to occur in
Florida. Absent an express intent, such
interpretation is inconsistent with the
State’s parens patriae interest in the
welfare of children in its jurisdiction.
(cont’d)
Holding: Section 39.01(15)(a) and (e)
does not require the child to be at
imminent risk. Only reason this child is
not at risk is because his uncle is caring
for him. Disagrees with trial court that
the allegations of the petition do not
satisfy chapter 39.
In the Interest of B.Y.G.M.
3D14-2409, 2015 WL 4268719
(Fla. 3d DCA July 15, 2015)
Background: Trial court denied private
dependency petition alleging father
abandoned 17 y.o. child when she was 8
months old. Child lives with Mother in
FL.
(cont’d)
Holding: Father’s abandonment was too
remote. There is no evidence child is at
substantial risk of imminent abuse,
abandonment, or neglect as child is safe
and secure with her mother.
Distinguished Y.V. See also In the
Interest of K.B.L.V., 2015 WL 4268740
(Fla. 3d DCA July 15, 2015).
O.I.C.L. v. Dep’t of Children & Families,
169 So. 3d 1244 (Fla. 4th DCA 2015)
Background: Private dependency
petition alleged Father abandoned 17
y.o. and Mother neglect him since he
was 12. Child was residing with uncle.
(cont’d)
Holding: No abandonment because uncle is a
relative caregiver, and there were no allegations
against him. While statute does not specify the
time period when the abuse or neglect must
occur, it would be unreasonable to read section
39.01(15)(a) to permit adjudication if a child
was ever subjected to abuse, abandonment, or
neglect at any point during his minority.
(cont’d)
Holding: When evaluating private petitions, court
should consider:
nature, severity, and frequency of the abuse,
neglect, or abandonment;
the time that has elapsed;
whether the child is presently at continued risk
of harm;
the availability of a caregiver to supervise; and
any other relevant factor.
State v. T.S.
155 So. 3d 476 (Fla. 1st DCA 2015)
Background: TPR reversed in A.H. v. DCF, 144
So. 3d 662 (Fla. 1st DCA 2014), as it was not the
least restrictive means to protect a child already
in a permanent guardianship. The trial judge
applied its interpretation of A.H. to deny TPR.
Here, there was no pre-existing guardianship, the
court made the findings that it would be unsafe
for the child to be in the care of his mother, and
the permanency plan was for adoption.
(Cont’d)
Holding: Reversed. As a matter of law, pursuant
to section 39.810(1), trial courts cannot consider
the availability of a nonadoptive placement with
a relative such as a permanent guardianship.
A.H. did not create an exception to allow an
alternative placement to defeat TPR based on
least restrictive means.
C.D. v. Fla. Dep’t of Children & Families,
164 So. 3d 40 (Fla. 1st DCA 2015)
Background: While T.S. was pending, an initial
brief was filed raising least restrictive means.
The trial court found proven two statutory
grounds for TPR, that termination was in the
manifest best interests of the children and was
the least restrictive means to protect them. The
trial court applied the same interpretation of
A.H. at issue in T.S.
(Cont’d)
Holding: The appellate court affirmed the findings
that two statutory grounds were proven and that
TPR was in the manifest best interests of the
children. Also affirmed was the finding that
reunification threatened the children. However, the
DCA reversed, finding that the evidence did not
establish TPR was the least restrictive means to
protect the children.
(Cont’d)
Holding: The DCA explained the trial court’s
interpretation of A.H. was not the least restrictive
means analysis and the order was internally
inconsistent in its findings. The test remains
whether reunification with the parent poses a
substantial risk of significant harm to the child.
(Cont’d)
Holding: On clarification, it was held that an
interpretation of the original opinion that TPR is
precluded because of some connection or bond
between the children and their parent and because
there may be some future supervised contact,
“overstates this opinion.” The order was incongruous
with the analysis which seeks to prevent harm to the
extent possible to the children. The opinion was a fact-
based decision based on the circumstances in the
case and the evidence which led to findings by the trial
court that were at odds with other findings.
Statewide GALP v. A.A. & A.S.A.
2015 WL 4510417 (Fla. 5th DCA July 27, 2015)
Background: The trial court found the mother’s
continued involvement in the parent-child
relationship threatened the children despite the
provision of services and she failed to complete
her case plan tasks which demonstrated the
children would be prospectively abused if placed in
her care. Reunification was not in their best
interest.
(cont’d)
Background: The court determined TPR was not
the least restrictive means to protect the children
from harm. The mother might respond to future
treatment and it could not be concluded a less
restrictive alternative could not ameliorate the risk.
(cont’d)
Holding: The Fifth DCA held the denial “incorrectly
suggests that the least restrictive means test
cannot be met if there are any available
alternatives.” The test requires measures short of
termination if they can permit the safe re-
establishment of the parent-child bond.
(cont’d)
Holding: It is unreasonable to prevent children
from being adopted if reunification with the parent
is impossible and it is otherwise in the children’s
best interest, even if evidence shows that limited
and supervised contact between the parent and
children would not be harmful. Emphasis on
whether any parent-child contact is possible
misconstrues the Florida Supreme Court’s
rationale for the least restrictive means test.
.”
(cont’d)
Holding: The availability of a safe and stable
relative placement does not negate proof of least
restrictive means and may not receive greater
consideration than any other factor and may not
be considered as a factor weighing against
termination. Generally a court should not consider
permanent guardianship unless it is first
determined that reunification is not in the best
interest of the child.
(cont’d)
Holding: Adoption is to be used as the first goal
after reunification. Adoption is preferred over
guardianship because guardianship requires
continuing judicial involvement. The trial court
shifted the focus away from the children’s best
interest to the mother’s interests. The change of
case plan to guardianship denied the children the
permanency and stability of adoption and
prioritized “tenuous parental contact over the
children’s right to permanency.”
B.K. v. Dep’t of Children & Families
166 So. 3d 866 (Fla. 4th DCA 2015)
Background: TPR based on father’s
incarceration constituting a significant portion of
the child’s minority. He was incarcerated in
2009 and his expected release date is 2017
when the child will be 8 ½ years old.
(cont’d)
Holding: Section 39.806(1)(d) now provides for TPR
when the period of incarceration will constitute a
significant portion of the child’s minority. Previously
incarceration had to constitute a substantial portion.
The change is not retroactive. The calculation of
incarceration time begins from the date of
incarceration. The court is to consider the child’s age
and need for a permanent and stable home. TPR
should be based on the actual effect of incarceration
on the parent-child relationship.
.
Holding: The opinion also addressed the LRM test.
The focus is on the child and not the parent.
Where the child is bonded with caregivers, TPR is
the LRM to protect from the harm of continued
instability. The mere sending of cards and letters
regardless of the lack of a real relationship could
leave a child without any permanency at all. The
child’s interests are paramount over a parent’s
desire to parent when the child would have to
remain in foster care for a substantial period to
effectuate a reunion.
D.S. v. Dep’t Of Children & Families
164 So. 3d 29 (Fla. 4th DCA 2015)
Background: TPR of Father arrested a month
before the three children were removed from the
mother, later sentenced to six years in prison.
Two children placed with an aunt and the third in
foster care. Father maintained contact with
children in relative placement. They were
bonded and the children would not be harmed in
any way if allowed to continue the relationship
leading to reunification.
(cont’d)
Background: The aunt was willing to keep the
children in permanent guardianship. The two
children with the aunt will not languish in foster
care and they will have regular contact with their
father. Third child thrived in the foster care
family and did not wish to see his father. The
child was bonded with the family to the
exclusion of the father.
(cont’d)
Holding: Under the amended statute, incarceration
as a basis for TPR is looked at both in terms of the
length and its effect on the child’s needs for
permanency. There are both qualitative and
quantitative dimensions to the inquiry. Father’s
incarceration was significant to the child in foster
care but not the other children. There was no
evidence of any harm that would occur for them
waiting to be reunited..
(cont’d)
Holding: The evidence did not support a finding
the length of incarceration negatively impacted
the children’s need for permanency or was a
significant portion of the children’s minorities.
The court reiterated the least restrictive means
tests requires proof there is a significant risk of
harm to the child or that are no measures short
of termination that could be used to protect the
child from harm.
A.S. v. Dep’t of Children & Families
162 So. 3d 335 (Fla. 4th DCA 2015)
Background: Initially the father was unknown
and the putative father was identified more than
six months after the child’s birth. The putative
father failed to keep contact, failed to appear for
paternity tests and did not take a test until seven
months after he was identified. He did not
contact the testing company to discover the
result. He met the child three months later and
there were subsequent visits.
(cont’d)
Holding: A prospective parent cannot abandon
the child unless the parent’s status falls within
the terms of sections 39.503(1) or 63.062(1). In
determining whether the father abandoned the
child, the court should have considered his
actions following his established paternity.
(cont’d)
Holding: TPR was also not the least restrictive
means because there was no evidence in the
record the father was unable to comply with the
case plan or that the child would suffer
significant harm if he were reunited with the
father.
E.H. v. Dep’t of Children & Families
147 So. 3d 616 (Fla. 3d DCA 2015)
Background: Dependency adjudication based on
domestic violence and the mother’s untreated
mental health issues. Competent substantial
evidence proved the mother had an untreated
mood disorder with a violent component as well
as the occurrence of multiple domestic violence
incidents.
(cont’d)
Holding: Proof of a history of DV and an ongoing
relationship between the parents can support
finding a present threat of harm to the children
exists. Where a nexus is shown between a
parent’s mental disorder and a significant risk of
danger to the children, the court is not required
to simply wait idly until the abuse occurs before
adjudicating dependency. A parent’s lack of
recognition of a mental disorder and lack of
participation in offered services exacerbates the
significant risk of danger.
Seilkop v. Barker
148 So. 3d 865 (Fla. 1st DCA 2015)
Background: At mother’s request, the child was
placed in Chapter 751 custody of relatives.
Mother’s petition to terminate the temporary
custody was denied based on factual findings
she was not a fit parent.
(cont’d)
Holding: The Chapter 751 analysis of whether a parent is
fit requires the court to consider whether a child has been
abused, abandoned or neglected as defined in Chapter 39.
Statutory neglect occurs when a child is deprived of
necessary food, clothing, shelter or medical treatment or
the child is permitted to live in an environment that causes
the child’s physical, mental, or emotional health to be
significantly impaired. Factual findings that are purely
speculative and poor parental judgment where the actions
did not result in harm or the deprivation of food, clothing,
shelter or medical care are not neglect.
K.K. v. Dep’t of Children & Families
164 So. 3d 11 (Fla. 2d DCA 2015)
Background: At a hearing on the mother’s
motions to address other matters, the trial court
sua sponte ordered the children to undergo
therapeutic assessments.
(cont’d)
Holding: Under the circumstances of the case,
requiring the children to undergo therapeutic
assessments results in material harm. Once the
assessment occurs the damage is done. The mother
was denied due process because the order granted
relief that was not requested in any of the pleadings
and there was no notice or opportunity to be heard.
Case plan tasks may not be imposed based on the
trial court’s inchoate concerns about child safety that
are not rationally related to the particular facts and
circumstances of the case.
Dep’t of Children & Families v. C.T.,
144 So. 3d 684 (Fla. 1st DCA 2014)
Background: During a status hearing in a
dependency case, the trial court ordered
reunification with the out-of-state father based
on its interpretation of Department of Children
and Families v. L.G., 801 So. 2d 1047 (Fla. 1st
DCA 2001), as holding that the ICPC does not
apply to placements with out-of-state parents.
The Department appealed.
(cont’d)
Holding: The trial court misinterpreted L.G. That
case holds that the ICPC does not apply when a
custodial parent, who has lawful custody of the
child at all pertinent times and full authority to
plan for the child, chooses to relocate to another
state. Reversed.
Dep’t of Children & Families v. T.S.,
154 So. 3d 1223 (Fla. 4th DCA 2015)
Background: The trial court sua sponte
dismissed the dependency petition at the fourth
scheduled arraignment hearing upon being
advised that the Department still had been
unable to locate and serve the parents and that
the child had absconded from two different
placements and a pick-up order remained
outstanding. The Department and child
appealed the dismissal.
(cont’d)
Holding: The trial court violated the
Department’s and the child’s due process rights
by dismissing the case without notice, a hearing,
and the opportunity to present evidence.
Reversed and remanded for further proceedings.
A.A. v. Dep’t of Children & Families,
147 So. 3d 621 (Fla. 3d DCA 2014)
Background: In 2012, the trial court entered an
order placing the children in a permanent
guardianship with their stepfather. A year later,
the mother moved to reopen the case and
sought reunification with the children. The trial
court denied the mother’s motion for
reunification without conducting an evidentiary
hearing. The mother sought certiorari review of
the order.
(cont’d)
Holding: The trial court violated the mother’s
right to due process by denying her the
opportunity to present evidence and testimony in
support of her motion. Section 39.621(9)
requires the trial court to hold a hearing and
places the burden on the parent to demonstrate
“that the safety, well-being, and physical,
mental, and emotional health of the child is not
endangered by the modification.” Petition
granted.
M.M. v. Dep’t of Children & Family Servs.,
No. 3D14-2372, 2015 WL 4077501 (Fla. 3d DCA Jul. 1,
2015)
Background: The father sought certiorari review of the
order terminating the Department’s supervision of the
children, denying him visitation, and limiting any future
visitation with the children to the children’s discretion. On
appeal, the father argued that the court denied him due
process because departmental supervision was
terminated without a motion, and that the trial court
departed from the essential requirements of law by
restricting his future contact with the children solely to the
children’s discretion.
(cont’d)
Holding: Father was not denied due process by the lack
of a motion to terminate supervision because the law
permits DCF to request termination of supervision “in a
written report to the court”; which it did via a JRSSR. On
the other hand, the trial court departed from the
essential requirements of law by delegating to the
children the authority to determine the father’s future
level of contact with them. The father the unqualified
ability to return to the dependency court to seek
modification or elimination of any court ordered
restrictions on his visitation rights. Petition granted in
part, denied in part.
A.F. v. Dep’t of Children & Families,
No. 3D14-1382, 2014 WL 5151623 (Fla. 3d DCA Oct. 15,
2014)
Background: The mother entered a consent plea to
dependency. The trial court appointed an attorney ad litem
for the child and specifically instructed the attorney ad
litem to protect the child’s best interests. After the mother
stopped visiting and ultimately failed to substantially
comply with the case plan, the Department filed a TPR
petition, which the trial court granted after an evidentiary
hearing. The mother appealed arguing that the trial court
erred by failing to appoint a guardian ad litem rather than
an attorney ad litem to represent the child’s best interests.
(cont’d)
Holding: The rules requiring the appointment of
a guardian ad litem are in place to ensure that
someone is representing the child’s best
interests free of conflict and to ensure that the
facts of the case have been fully considered.
Here, the court appointed an attorney ad litem
early in the proceedings and directed that she
represent the best interests of the child—and the
record establishes that she dutifully represented
the child’s best interests. Affirmed.
D.S-B. v. Dep’t of Children & Families,
155 So. 3d 451 (Fla. 4th DCA 2015)
Background: Midway through the final hearing on
the dependency petition, the mother’s fourth lawyer
withdrew from representing her. The court
conducted a Faretta-like questioning of the mother,
but it failed to delve into how her mental condition
affected her ability to validly waive counsel. In its
final order the court found the children to be
dependent in large part because of the mother’s
mental health issues. The mother appealed.
(cont’d)
Holding: Just as in the criminal context, in
dependency cases, the right to self-representation
may be exercised only by a parent who is competent
and makes a knowing and voluntary waiver of
counsel. Because the trial court failed to consider
the mother’s mental health in determining whether
she could represent herself, the court failed to
consider all of the factors relevant to whether she
had made an intelligent and knowing choice to
represent herself. Reversed and remanded for
additional proceedings.
S.V. v. Dep’t of Children & Families,
No. 3D15–636, 2015 WL 4095258 (Fla. 3d DCA Jul. 8,
2015)
Background: After conducting an evidentiary hearing on
both the Department’s, the GAL’s, and the AAL’s joint
motion to amend the case-plan goal to permanent
guardianship, and the father’s motion for reunification, the
magistrate issued a report recommending that the court
grant the father’s motion for reunification. The trial court
entered an order setting aside the magistrate’s report and
recommendations, denying the Father’s motion, and
placing the children into permanent guardianship. The
father sought certiorari review of the order.
(cont’d)
Holding: The appellate court was unable to
conclude that the trial court had departed from
the essential requirements of law by rejecting
the magistrate’s report and recommendations.
The trial court did not substitute its judgment for
the magistrate’s; it conducted a thoughtful
analysis of the applicable law, and determined
that the magistrate had misconceived the legal
effect of the evidence. Petition denied.
M.P. v. Dep’t of Children & Families,
159 So. 3d 341 (Fla. 4th DCA 2015)
Background: The Department filed a
dependency petition against both parents based
on allegations concerning the mother’s drug
abuse, her exposure of the children to domestic
violence with her boyfriend (not the father), and
her burning of one of the children’s finger. The
petition alleged that the father had minimal
contact with the children and knowingly failed to
protect them from the mother’s actions.
(cont’d)
Background: The mother consented; however,
the father sought custody of the children and
denied the allegations. The court adjudicated
the children dependent as to both the parents.
The order contained a verbatim recitation of the
“prior history” of past investigations, and the
disposition order directed the father to submit to
random drug screens. The Father appealed both
orders.
(cont’d)
Holding: The adjudication of dependency as a
whole was supported by competent substantial
evidence, but the “prior history” paragraph
consisted of uncorroborated abuse reports that
were never proven at trial. Thus, the appellate
court affirmed the adjudication of dependency,
and remanded with instructions for the trial court
to strike that portion from both orders.
(cont’d)
Holding: Additionally, even though the allegation
concerning his criminal drug history was sufficient to
place the issue of the father’s substance use in
controversy, there was no showing of good cause for a
substance abuse evaluation of the father or random
drug screens, no evidence showing that the father
abused drugs or evidence regarding his alleged arrest
for possession. Accordingly, the court reversed and
remanded for court to strike the task of random drug
testing from the father’s case plan. Affirmed in part,
Reversed in part, and Remanded.
H.C. v. Dep’t of Children & Families,
No. 5D14–1225, 2014 WL 3805524 (Fla. 5th
DCA Aug. 4, 2014)
Background: Mother appealed the final order
denying her motion to re-open her children’s
dependency case in order to modify the trial
court’s previously entered order placing children
in permanent guardianship with their paternal
grandparents.
(cont’d)
Holding: The appellate court affirmed the denial
because, contrary to the mother’s claim, she had
the burden of proving that the safety, well-being,
and physical, mental, and emotional health of
the children would not be endangered by
reunification; the Department had no burden.
Let’s discuss some of the child welfare
bills passed during the
2015 Legislative Session
86
The Regis Little Act to
Protect Children with
Special Needs
87
Formalizes the process of appointing a guardian or guardian advocate for a young adult determined by the court to meet the requirements of Chapter 744, F.S., for appointment of a guardian or s. 393.12, F.S., for appointment of guardian advocate
88
If youth meets requirements for appointment of a guardian,
the updated case plan must be developed in a face-to-face
conference with youth, if appropriate, along with others
involved in the case
The court shall review the necessity of continuing the guardianship and whether
restoration of guardianship is needed when young adult
turns 22
89
• Include in the child’s updated case plan a multidisciplinary report that includes psychosocial evaluation and educational report if one has not been completed within previous 2 years
• Identify one or more individuals as a guardian advocate, plenary or limited guardian
• Allows other parties or participants to also identify guardian or advocate
If child meets requirements
for appointment
of a guardian:
90
•The child’s biological or adoptive family members, including the child’s parents if the parents’ rights have not been terminated, may not be considered for service as the plenary or limited guardian unless the court enters a written order finding that such an appointment is in the child’s best interest
If child meets requirements
for appointment
of a guardian:
91
Allows proceedings to be initiated within 180 days after the child turns 17 years of age for the appointment of a guardian advocate, plenary guardian, or limited guardian
Encourages the use of pro bono representation to initiate proceedings
Requires the Department to share information with parties that are interested in the guardianship process for the young adult within 45 days after the first judicial review hearing after the child turns 17 years of age
92
Requires Probate court to initiate proceedings
for appointment of a guardian advocate if the
petition filed for appointment is filed for a
child who is subject to Chapter 39 proceedings
when the child has attained 17 years and 6
months or older
93
Addresses ways to strengthen and increase
adoptions of children involved in the child
welfare system
Prioritizes educational stability of foster
children
Prohibits the Department and CBCs from
discriminating against the utilization of
home schooling
94
Department is to ensure:
Children are enrolled in school in the
best educational setting
Educational setting meets the child’s
needs
Minimal disruption of education
95
Must maintain educational stability for the child with first
priority to remain in school attended before entry into out-of-home care if it is in best interest of the child
If not in best interest of child, must work with case manager and other
professionals to determine best educational setting to
meet the child’s needs
96
CBCs must make “reasonable effort” to
contact family by phone one year after adoption
finalization and document contact(s)
Must provide post-adoption services if requested by family and document if services provided and
feedback as to quality and effectiveness
Must report to Department outcomes achieved and recommendations for
improvement
97
A program for CBCs and their subcontractors that awards
incentive payments for achievement of specific and
measureable adoption performance standards
Requires the Department to:
Conduct comprehensive baseline assessment of providers’
performance in eight areas
Compile data for most recent 5 years
Annually negotiate outcome-based agreements with CBCs
Legislatively mandated report
Contingent upon funding from the Legislature
98
Recreates an adoption benefits program for full-time employees of state agencies who are adopting
children who are in the foster care system
Each state agency shall
develop uniform procedure for
informing employees about
the benefit
Once a year open enrollment period
Provides a one-time, taxable payment of $5,000 or
$10,000 to qualifying
employees who adopt children in the foster care
system
Contingent upon funding
from the Legislature
99
Requires licensed child-placing agencies that provide adoption services for intercountry adoptions to meet federal regulations
An adoption agency in Florida which provides intercountry adoption services for families residing in Florida must maintain a record that contains:
All available family and medical history
of birth family
All legal documents translated into
English
All necessary documents obtained by adoptive parent in order for child to
attain US citizenship
All supervisory reports prepared
before an adoption and after finalization
of an adoption
10
0
CS/HB 7078
(Chapter 2015-130, Laws
of Florida)
Child Welfare
101
Critical Incident Rapid
Response Team
Deployment Reports
Expands Secretary’s authority to deploy a CIRRT
when a child death or serious injury occurs during
an open investigation
Requires the CIRRT Advisory Committee to meet at least
quarterly and to submit Legislatively mandated reports
quarterly to the Secretary
102
Limits staffing of reports alleging medical neglect to those reports substantiated by the Child Protection Team
10
3
Clarifies functions of the Child Abuse Death Review state and local
committees:
Adds a substance abuse treatment professional to the State
Committee
State Committee is to provide direction and leadership
Local Committees to conduct individual case reviews of deaths,
generate information, make recommendations and
improvements locally
Outlines members to be included on Local Committees
Requires to extent possible, individuals who dealt with a child
whose death is verified to attend meetings where child’s
case is reviewed
10
4
Amends s. 402.301, F.S., to require all personnel of
membership organizations affiliated with national
organizations which do not provide child care to meet
Level 2 background screening requirements
Amends s. 402.302(3), F.S., regarding the definition of
child care personnel to include “membership
organizations” for the purpose of background screening
requirements
Amends s. 435.02, F.S., adding local licensing agencies
approved pursuant to s. 402.307, F.S., to have access to
the Clearinghouse 10
5
Implements recommendations of the Florida Institute
for Child Welfare by clarifying Legislative intent to
prioritize evidence-based and trauma-informed
services
Strengthens language around the services to be
provided to dependent children to include services that
are supported by research or that are recognized as
best practices in the child welfare field
Requires the CBCs to give priority to the use of services
that are evidenced based and trauma-informed
10
6
Requires district school boards, charter schools, and private schools that accept scholarship students to hang poster size
notices in English and Spanish that provide the abuse hotline number and
directions for accessing the Department’s internet website along with instructions to call 911 for emergencies
10
7
Authorizes a grandparent of minor child
whose parents are deceased, missing, or in
a permanent vegetative state to petition the
court for visitation with the grandchild
If a minor child is adopted by a stepparent
or close relative, the adoptive parent may
petition the court to terminate a
grandparent visitation order
10
8
The bill creates section 934.03(2)(k), which
makes it lawful for a child to intercept and
record an oral communication if the child is a
party to the communication and has
reasonable grounds to believe that recording
the communication will capture the other
party’s statement that the party intends to
commit, is committing, or has committed an
unlawful sexual act or an unlawful act of
physical force or violence against the child.
MANY THANKS TO:
Jane McElroy
Legislative & Budget Consultant
Office of Child Welfare
