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The Florida Senate

2024 Florida Statutes

Title V JUDICIAL BRANCH
Chapter 39 PROCEEDINGS RELATING TO CHILDREN Entire Chapter
SECTION 5035
Deceased parents; special procedures.
F.S. 39.5035
39.5035 Deceased parents; special procedures.—
(1)(a)1. If both parents of a child are deceased or the last known living parent of a child is deceased and a legal custodian has not been appointed for the child through a probate or guardianship proceeding, then an attorney for the department or any other person who has knowledge of the facts alleged or is informed of the alleged facts, and believes them to be true, may initiate a proceeding by filing a petition for adjudication and permanent commitment.
2. If a child has been placed in shelter status by order of the court but has not yet been adjudicated, a petition for adjudication and permanent commitment must be filed within 21 days after the shelter hearing. In all other cases, the petition must be filed within a reasonable time after the date the petitioner first becomes aware of the facts that support the petition for adjudication and permanent commitment.
(b) If both parents die or the last known living parent dies after a child has already been adjudicated dependent, an attorney for the department or any other person who has knowledge of the facts alleged or is informed of the alleged facts, and believes them to be true, may file a petition for permanent commitment. The petition must be filed within a reasonable time after the petitioner first becomes aware of the facts that support the petition for permanent commitment.
(2) The petition must be:
(a) In writing, identify the alleged deceased parents, and provide facts that establish that both parents of the child are deceased or the last known living parent is deceased and that a legal custodian has not been appointed for the child through a probate or guardianship proceeding.
(b) Signed by the petitioner under oath stating the petitioner’s good faith in filing the petition.
(3) When a petition for adjudication and permanent commitment or a petition for permanent commitment has been filed, the clerk of court must set the case before the court for an adjudicatory hearing. The adjudicatory hearing must be held as soon as practicable after the petition is filed, but no later than 30 days after the filing date.
(4) Notice of the date, time, and place of the adjudicatory hearing and a copy of the petition must be served on the following persons:
(a) Any person who has physical custody of the child.
(b) A living relative of each parent of the child, unless a living relative cannot be found after a diligent search or inquiry.
(c) The guardian ad litem for the child or the representative of the guardian ad litem program, if the program has been appointed.
(5) The court shall conduct adjudicatory hearings without a jury and apply the rules of evidence in use in civil cases, adjourning the hearings as necessary. The court must determine whether the petitioner has established by clear and convincing evidence that both parents of the child are deceased, or that the last known living parent is deceased and the other parent cannot be found after a diligent search or inquiry, and that a legal custodian has not been appointed for the child through a probate or guardianship proceeding. A certified copy of the death certificate for each parent is sufficient evidence of the parents’ deaths.
(6) Within 30 days after an adjudicatory hearing on a petition for adjudication and permanent commitment:
(a) If the court finds that the petitioner has met the clear and convincing standard, the court must enter a written order adjudicating the child dependent and permanently committing the child to the custody of the department for the purpose of adoption. A disposition hearing must be scheduled no later than 30 days after the entry of the order, in which the department must provide a case plan that identifies the permanency goal for the child to the court. Reasonable efforts must be made to place the child in a timely manner in accordance with the permanency plan and to complete all steps necessary to finalize the permanent placement of the child. Thereafter, until the adoption of the child is finalized or the child reaches the age of 18 years, whichever occurs first, the court must hold hearings every 6 months to review the progress being made toward permanency for the child.
(b) If the court finds that clear and convincing evidence does not establish that both parents of a child are deceased, or that the last known living parent is deceased and the other parent cannot be found after a diligent search or inquiry, and that a legal custodian has not been appointed for the child through a probate or guardianship proceeding, but that a preponderance of the evidence establishes that the child does not have a parent or legal custodian capable of providing supervision or care, the court must enter a written order adjudicating the child dependent. A disposition hearing must be scheduled no later than 30 days after the entry of the order as provided in s. 39.521.
(c) If the court finds that the petitioner has not met the clear and convincing standard and that a preponderance of the evidence does not establish that the child does not have a parent or legal custodian capable of providing supervision or care, the court must enter a written order so finding and dismiss the petition.
(7) Within 30 days after an adjudicatory hearing on a petition for permanent commitment:
(a) If the court finds that the petitioner has met the clear and convincing standard, the court must enter a written order permanently committing the child to the custody of the department for purposes of adoption. A disposition hearing must be scheduled no later than 30 days after the entry of the order, in which the department must provide an amended case plan that identifies the permanency goal for the child to the court. Reasonable efforts must be made to place the child in a timely manner in accordance with the permanency plan and to complete all steps necessary to finalize the permanent placement of the child. Thereafter, until the adoption of the child is finalized or the child reaches the age of 18 years, whichever occurs first, the court must hold hearings every 6 months to review the progress being made toward permanency for the child.
(b) If the court finds that clear and convincing evidence does not establish that both parents of a child are deceased or that the last known living parent is deceased and the other parent cannot be found after a diligent search or inquiry, the court must enter a written order denying the petition. The order has no effect on the child’s prior adjudication. The order does not bar the petitioner from filing a subsequent petition for permanent commitment based on newly discovered evidence that establishes that both parents of a child are deceased, or that the last known living parent is deceased, and that a legal custodian has not been appointed for the child through a probate or guardianship proceeding.
History.—s. 3, ch. 2024-177.