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The Florida Senate

2024 Florida Statutes

Title V JUDICIAL BRANCH
Chapter 39 PROCEEDINGS RELATING TO CHILDREN Entire Chapter
SECTION 522
Postdisposition change of custody.
F.S. 39.522
39.522 Postdisposition change of custody.—
(1) The court may change the temporary legal custody or the conditions of protective supervision at a postdisposition hearing, without the necessity of another adjudicatory hearing.
(2)(a) At any time before a child is residing in the permanent placement approved at the permanency hearing, a child who has been placed in the child’s own home under the protective supervision of an authorized agent of the department, in the home of a relative, in the home of a legal custodian, or in some other place may be brought before the court by the department or by any other interested person, upon the filing of a motion alleging a need for a change in the conditions of protective supervision or the placement. If any party or the current caregiver denies the need for a change, the court shall hear all parties in person or by counsel, or both.
(b) Upon the admission of a need for a change or after such hearing, the court shall enter an order changing the placement, modifying the conditions of protective supervision, or continuing the conditions of protective supervision as ordered. The standard for changing custody of the child shall be the best interests of the child. When determining whether a change of legal custody or placement is in the best interests of the child, the court shall consider the factors listed in s. 39.01375 and the report filed by the multidisciplinary team, if applicable, unless the change of custody or placement is made pursuant to s. 63.082(6). The court shall also consider the priority of placements established under s. 39.4021 when making a decision regarding the best interest of the child in out-of-home care.
(c) If the child is not placed in foster care, the new placement for the child must meet the home study criteria and court approval under this chapter.
(3)(a) For purposes of this subsection, the term “change in physical custody” means a change by the department or community-based care lead agency to the child’s physical residential address, regardless of whether such change requires a court order to change the legal custody of the child. However, this term does not include a change in placement made pursuant to s. 63.082(6).
(b)1. In a hearing on the change of physical custody under this section, there shall be a rebuttable presumption that it is in the child’s best interest to remain permanently in his or her current physical placement if:
a. The child has been in the same safe and stable placement for 9 consecutive months or more;
b. Reunification is not a permanency option for the child;
c. The caregiver is able, willing, and eligible for consideration as an adoptive parent or permanent custodian for the child;
d. The caregiver is not requesting the change in physical placement; and
e. The change in physical placement being sought is not to reunify the child with his or her parent or sibling or transition the child from a safe and stable nonrelative caregiver to a safe and stable relative caregiver.
2. In order to rebut the presumption established in this paragraph, the court shall hold an evidentiary hearing on the change in physical custody to determine if the change in placement is in the best interest of the child. As part of the evidentiary hearing, the court must consider competent and substantial evidence and testimony related to the factors enumerated in s. 39.01375 and any other evidence deemed relevant to a determination of placement, including evidence from a court-selected neutral and independent licensed professional with expertise in the science and research of child-parent bonding.
3. This presumption may not be rebutted solely by the expressed wishes of a biological parent, a biological relative, or a caregiver of a sibling of the child.
(c)1. The department or community-based care lead agency must notify a current caregiver who has been in the physical custody placement for at least 9 consecutive months and who meets all the established criteria in paragraph (b) of an intent to change the physical custody of the child, and a multidisciplinary team staffing must be held in accordance with ss. 39.4022 and 39.4023 at least 21 days before the intended date for the child’s change in physical custody, unless there is an emergency situation as defined in s. 39.4022(2)(b). If there is not a unanimous consensus decision reached by the multidisciplinary team, the department’s official position must be provided to the parties within the designated time period as provided for in s. 39.4022.
2. A caregiver who objects to the department’s official position on the change in physical custody must notify the court and the department or community-based care lead agency of his or her objection and the intent to request an evidentiary hearing in writing in accordance with this section within 5 days after receiving notice of the department’s official position provided under subparagraph 1. The transition of the child to the new caregiver may not begin before the expiration of the 5-day period within which the current caregiver may object.
3. Upon the department or community-based care lead agency receiving written notice of the caregiver’s objection, the change to the child’s physical custody must be placed in abeyance and the child may not be transitioned to a new physical placement without a court order, unless there is an emergency situation as defined in s. 39.4022(2)(b).
4. Within 7 days after receiving written notice from the caregiver, the court must conduct an initial case status hearing, at which time the court must do all of the following:
a. Grant party status to the current caregiver who is seeking permanent custody and has maintained physical custody of that child for at least 9 continuous months for the limited purpose of filing a motion for a hearing on the objection and presenting evidence pursuant to this subsection.
b. Advise the caregiver of his or her right to retain counsel for purposes of the evidentiary hearing.
c. Appoint a court-selected neutral and independent licensed professional with expertise in the science and research of child-parent bonding.
(d) The court must conduct the evidentiary hearing and provide a written order of its findings regarding the placement that is in the best interest of the child no later than 90 days after the date the caregiver provided written notice to the court under this subsection. The court must provide its written order to the department or community-based care lead agency, the caregiver, and the prospective caregiver. The party status granted to the current caregiver under sub-subparagraph (c)4.a. terminates upon the written order by the court, or upon the 90-day time limit established in this paragraph, whichever occurs first.
(e) If the court orders that the physical custody of the child change from the current caregiver after the evidentiary hearing, the department or community-based care lead agency must implement the appropriate transition plan developed in accordance with ss. 39.4022 and 39.4023 or as ordered by the court.
(4) In cases where the issue before the court is whether a child should be reunited with a parent, the court shall review the conditions for return and determine whether the circumstances that caused the out-of-home placement and issues subsequently identified have been remedied to the extent that the return of the child to the home with an in-home safety plan prepared or approved by the department will not be detrimental to the child’s safety, well-being, and physical, mental, and emotional health.
(5) In cases where the issue before the court is whether a child who is placed in the custody of a parent should be reunited with the other parent upon a finding that the circumstances that caused the out-of-home placement and issues subsequently identified have been remedied to the extent that the return of the child to the home of the other parent with an in-home safety plan prepared or approved by the department will not be detrimental to the child, the standard shall be that the safety, well-being, and physical, mental, and emotional health of the child would not be endangered by reunification and that reunification would be in the best interest of the child.
(6) In cases in which the issue before the court is whether to place a child in out-of-home care after the child was placed in the child’s own home with an in-home safety plan or the child was reunified with a parent or caregiver with an in-home safety plan, the court must consider, at a minimum, the following factors in making its determination whether to place the child in out-of-home care:
(a) The circumstances that caused the child’s dependency and other subsequently identified issues.
(b) The length of time the child has been placed in the home with an in-home safety plan.
(c) The parent’s or caregiver’s current level of protective capacities.
(d) The level of increase, if any, in the parent’s or caregiver’s protective capacities since the child’s placement in the home based on the length of time the child has been placed in the home.

The court shall additionally evaluate the child’s permanency goal and change the permanency goal as needed if doing so would be in the best interests of the child. If the court changes the permanency goal, the case plan must be amended pursuant to s. 39.6013(5).

(7) Notwithstanding any other provision of this section, a child’s case manager, an authorized agent of the department, or a law enforcement officer may, at any time, remove a child from a court-ordered placement and take the child into custody if the court-ordered caregiver of the child requests immediate removal of the child from the home. Additionally, an authorized agent of the department or a law enforcement officer may, at any time, remove a child from a court-ordered placement and take the child into custody if there is probable cause as required under s. 39.401(1)(b).
(a) If, at the time of the removal, the child was not placed in licensed care in the department’s custody, the department must file a motion to modify placement within 1 business day after the child is taken into custody. The court must then set a hearing within 24 hours after the motion is filed unless all of the parties and the current caregiver agree to the change of placement. At the hearing, the court must determine if the department has established probable cause to support the immediate removal of the child from his or her current placement. The court may base its determination on a sworn petition or affidavit or on testimony and may hear all relevant and material evidence, including oral or written reports, to the extent of their probative value, even if such evidence would not be competent evidence at an adjudicatory hearing.
(b) If the court finds that the department did not establish probable cause to support the removal of the child from his or her current placement, the court must enter an order that the child be returned to such placement. An order by the court to return the child to his or her current placement does not preclude a party from filing a subsequent motion pursuant to subsection (2).
(c) If the current caregiver admits that a change of placement is needed or the department establishes probable cause to support removal of the child, the court must enter an order changing the placement of the child. The new placement for the child must meet the home study criteria in this chapter if the child is not placed in foster care.
(d) If the court finds probable cause and modifies the child’s placement, the court must conduct a hearing pursuant to subsection (2) or subsection (3), unless such hearing is waived by all parties and the caregiver.
History.—s. 25, ch. 2000-139; s. 14, ch. 2006-86; s. 3, ch. 2013-21; s. 13, ch. 2017-151; s. 6, ch. 2019-128; s. 5, ch. 2020-138; s. 10, ch. 2021-169; s. 19, ch. 2024-70; s. 4, ch. 2024-177.