The Florida Senate

39.41  Powers of disposition.--

(1)  When any child is adjudicated by a court to be dependent, and the court finds that removal of the child from the custody of a parent is necessary, the court shall first determine whether there is a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the jurisdiction of the court who desires to assume custody of the child and, if such parent requests custody, the court shall place the child with the parent unless it finds that such placement would endanger the safety and well-being of the child. Any party with knowledge of the facts may present to the court evidence regarding whether the placement will endanger the safety and well-being of the child. If the court places the child with such parent, it may do either of the following:

(a)  Order that the parent become the legal and physical custodian of the child. The court may also provide for reasonable visitation by the noncustodial parent. The court shall then terminate its jurisdiction over the child. The custody order shall continue unless modified by a subsequent order of the court. The order of the juvenile court shall be filed in any dissolution or other custody action or proceeding between the parents.

(b)  Order that the parent assume custody subject to the jurisdiction of the juvenile court. The court may order that reunification services be provided to the parent or guardian from whom the child has been removed, that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court jurisdiction, or that services be provided to both parents, in which case the court shall determine at review hearings held every 6 months which parent, if either, shall have custody of the child. The standard for changing custody of the child from one parent to another at the review hearings shall be the same standard as applies to changing custody of the child in a custody hearing following a decree of dissolution of marriage.

(2)

(a)  When any child is adjudicated by a court to be dependent, the court having jurisdiction of the child has the power, by order, to:

1.  Require the parent, guardian, or custodian, and the child when appropriate to participate in treatment and services identified as necessary.

2.  Require the parent, guardian, or custodian, and the child when appropriate to participate in mediation if the parent, guardian, or custodian refused to participate in mediation under s. 39.4033.

3.  Place the child under the protective supervision of an authorized agent of the department, either in the child's own home or, the prospective custodian being willing, in the home of a relative of the child or of an adult nonrelative approved by the court, or in some other suitable place under such reasonable conditions as the court may direct. Whenever the child is placed under protective supervision pursuant to this section, the department shall prepare a case plan and shall file it with the court. Protective supervision continues until the court terminates it or until the child reaches the age of 18, whichever date is first. Protective supervision may be terminated by the court whenever the court determines that the child's placement, whether with a parent, another relative, or a nonrelative, is stable and that protective supervision is no longer needed. The termination of supervision may be with or without retaining jurisdiction, at the court's discretion, and shall in either case be considered a permanency option for the child. The order terminating supervision by the Department of Children and Family Services shall set forth the powers of the custodian of the child and shall include the powers ordinarily granted to a guardian of the person of a minor unless otherwise specified.

4.  Place the child in the temporary legal custody of an adult relative or an adult nonrelative approved by the court who is willing to care for the child.

5.

a.  When the parents have failed to comply with a case plan and the court determines at a judicial review hearing held pursuant to s. 39.453, or at a hearing held pursuant to ¹subparagraph (1)(a)7. of this section, that neither reunification, termination of parental rights, nor adoption is in the best interest of the child, the court may place the child in the long-term custody of an adult relative or adult nonrelative approved by the court willing to care for the child, if the following conditions are met:

(I)  A case plan describing the responsibilities of the relative or nonrelative, the department, and any other party must have been submitted to the court.

(II)  The case plan for the child does not include reunification with the parents or adoption by the relative.

(III)  The child and the relative or nonrelative custodian are determined not to need protective supervision or preventive services to ensure the stability of the long-term custodial relationship, or the department assures the court that protective supervision or preventive services will be provided in order to ensure the stability of the long-term custodial relationship.

(IV)  Each party to the proceeding agrees that a long-term custodial relationship does not preclude the possibility of the child returning to the custody of the parent at a later date.

(V)  The court has considered the reasonable preference of the child if the court has found the child to be of sufficient intelligence, understanding, and experience to express a preference.

b.  The court shall retain jurisdiction over the case, and the child shall remain in the long-term custody of the relative or nonrelative approved by the court until the order creating the long-term custodial relationship is modified by the court. The court may relieve the department of the responsibility for supervising the placement of the child whenever the court determines that the placement is stable and that such supervision is no longer needed. Notwithstanding the retention of jurisdiction, the placement shall be considered a permanency option for the child when the court relieves the department of the responsibility for supervising the placement. The order terminating supervision by the Department of Children and Family Services shall set forth the powers of the custodian of the child and shall include the powers ordinarily granted to a guardian of the person of a minor unless otherwise specified. The court may modify the order terminating supervision of the long-term relative or nonrelative placement if it finds that a party to the proceeding has shown a material change in circumstances which causes the long-term relative or nonrelative placement to be no longer in the best interest of the child.

6.

a.  Approve placement of the child in long-term foster care, when the following conditions are met:

(I)  The foster child is 16 years of age or older, unless the court determines that the history or condition of a younger child makes long-term foster care the most appropriate placement.

(II)  The child demonstrates no desire to be placed in an independent living arrangement pursuant to this subsection.

(III)  The department's social services study pursuant to s. 39.453(6)(a) recommends long-term foster care.

b.  Long-term foster care under the above conditions shall not be considered a permanency option.

c.  The court may approve placement of the child in long-term foster care, as a permanency option, when all of the following conditions are met:

(I)  The child is 14 years of age or older,

(II)  The child is living in a licensed home and the foster parents desire to provide care for the child on a permanent basis and the foster parents and the child do not desire adoption,

(III)  The foster family has made a commitment to provide for the child until he or she reaches the age of majority and to prepare the child for adulthood and independence, and

(IV)  The child has remained in the home for a continuous period of no less than 12 months.

(V)  The foster parents and the child view one another as family and consider living together as the best place for the child to be on a permanent basis.

(VI)  The department's social services study recommends such placement and finds the child's well-being has been promoted through living with the foster parents.

d.  Notwithstanding the retention of jurisdiction and supervision by the department, long-term foster care placements made pursuant to sub-subparagraph (2)(a)6.c. of this section shall be considered a permanency option for the child. For purposes of this subsection, supervision by the department shall be defined as a minimum of semiannual visits. The order placing the child in long-term foster care as a permanency option shall set forth the powers of the custodian of the child and shall include the powers ordinarily granted to a guardian of the person of a minor unless otherwise specified. The court may modify the permanency option of long-term foster care if it finds that a party to the proceeding has shown a material change in circumstances which causes the placement to be no longer in the best interests of the child.

7.  Commit the child to a licensed child-caring agency willing to receive the child. Continued commitment to the licensed child-caring agency, as well as all other proceedings under this section pertaining to the child, are also governed by ²part V of this chapter.

8.  Commit the child to the temporary legal custody of the department. Such commitment invests in the department all rights and responsibilities of a legal custodian. The department shall not return any child to the physical care and custody of the person from whom the child was removed, except for short visitation periods, without the approval of the court. The term of such commitment continues until terminated by the court or until the child reaches the age of 18. After the child is committed to the temporary custody of the department, all further proceedings under this section are also governed by ²part V of this chapter.

9.

a.  Change the temporary legal custody or the conditions of protective supervision at a postdisposition hearing subsequent to the initial detention hearing, without the necessity of another adjudicatory 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 nonrelative, or in some other place may be brought before the court by the agent of the department who is supervising the placement or by any other interested person, upon the filing of a petition alleging a need for a change in the conditions of protective supervision or the placement. If the parents or other custodians deny the need for a change, the court shall hear all parties in person or by counsel, or both. 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.

b.  In cases where the issue before the court is whether a child should be reunited with a parent, the court shall determine whether the parent has substantially complied with the terms of the case plan to the extent that the well-being and safety of the child is not endangered by the return of the child to the home.

10.  Approve placement of the child in an independent living arrangement for any foster child 16 years of age or older, if it can be clearly established that this type of alternate care arrangement is the most appropriate plan and that the safety and welfare of the child will not be jeopardized by such an arrangement. While in independent living situations, children whose legal custody has been awarded to the department or a licensed child-caring or child-placing agency, or who have been voluntarily placed with such an agency by a parent, guardian, relative, or adult nonrelative approved by the court, continue to be subject to the court review provisions of s. 39.453.

(b)  The court shall, in its written order of disposition, include all of the following:

1.  The placement or custody of the child as provided in paragraph (a).

2.  Special conditions of placement and visitation.

3.  Evaluation, counseling, treatment activities, and other actions to be taken by the parties, if ordered.

4.  The persons or entities responsible for supervising or monitoring services to the child and family.

5.  Continuation or discharge of the guardian ad litem, as appropriate.

6.  The period of time or date for any subsequent case review required by law.

7.  Other requirements necessary to protect the health, safety, and well-being of the child and to promote family preservation or reunification whenever possible.

(c)  If the court finds that the prevention or reunification efforts of the department will allow the child to remain safely at home or be safely returned to the home, 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 and well-being will not be endangered.

(3)

(a)  When any child is adjudicated by the court to be dependent and temporary legal custody of the child has been placed with an adult relative or adult nonrelative approved by the court willing to care for the child, a licensed child-caring agency, or the department, the court shall, unless a parent has voluntarily executed a written surrender for purposes of adoption, order the parents, or the guardian of the child's estate if possessed of assets which under law may be disbursed for the care, support, and maintenance of the child, to pay child support to the adult relative or nonrelative caring for the child, the licensed child-caring agency, or the department. The court may exercise jurisdiction over all child support matters, shall adjudicate the financial obligation, including health insurance, of the child's parents or guardian, and shall enforce the financial obligation as provided in chapter 61. The state's child support enforcement agency shall enforce child support orders under this section in the same manner as child support orders under chapter 61.

(b)  Placement of the child pursuant to subsection (1) shall not be contingent upon issuance of a support order.

(4)

(a)  If the court does not commit the child to the temporary legal custody of an adult relative or adult nonrelative approved by the court, the disposition order shall include the reasons for such a decision and shall include a determination as to whether diligent efforts were made by the department to locate an adult relative willing to care for the child in order to present that placement option to the court instead of placement with the department.

³(b)  If diligent efforts are made to locate an adult relative willing and able to care for the child but, because no suitable relative is found, the child is placed with the department or a nonrelative custodian, both the department and the court shall consider transferring temporary legal custody to a willing adult relative or adult nonrelative approved by the court at a later date, but neither the department nor the court is obligated to so place the child if it is in the child's best interest to remain in the current placement. For the purposes of this paragraph, "diligent efforts to locate an adult relative" means a search similar to the diligent search for a parent, but without the continuing obligation to search after an initial adequate search is completed.

(5)

(a)  If the court commits the child to the temporary legal custody of the department, the disposition order must include a written determination that the child cannot remain at home with reunification or family preservation services and that removal of the child is necessary to protect the child. If the child has been removed before the disposition hearing, the order must also include a written determination as to whether, after removal, the department has made a reasonable effort to reunify the family. The department has the burden of demonstrating that it has made reasonable efforts under this subsection.

(b)  For the purposes of this subsection, the term "reasonable effort" means the exercise of reasonable diligence and care by the department to provide the services delineated in the case plan.

(c)  In support of its determination as to whether reasonable efforts have been made, the court shall:

1.  Enter written findings as to whether or not prevention or reunification efforts were indicated.

2.  If prevention or reunification efforts were indicated, include a brief written description of what appropriate and available prevention and reunification efforts were made.

3.  Indicate in writing why further efforts could or could not have prevented or shortened the separation of the family.

(d)  A court may find that the department has made a reasonable effort to prevent or eliminate the need for removal if:

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

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

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

(e)  A reasonable effort by the department for reunification of the family has been made if the appraisal of the home situation by the department indicates that the severity of the conditions of dependency is such that reunification efforts are inappropriate. The department has the burden of demonstrating to the court that reunification efforts were inappropriate.

(f)  If the court finds that the prevention or reunification effort of the department would not have permitted the child to remain safely at home, the court may commit the child to the temporary legal custody of the department or take any other action authorized by this part.

(6)  An agency granted legal custody shall have the right to determine where and with whom the child shall live, but an individual granted legal custody shall exercise all rights and duties personally unless otherwise ordered by the court.

(7)  In carrying out the provisions of this chapter, the court may order the natural parents or legal guardian of a child who is found to be dependent to participate in family counseling and other professional counseling activities deemed necessary for the rehabilitation of the child.

(8)  With respect to a child who is the subject in proceedings under ²part V of this chapter, the court shall return the child to the custody of the natural parents upon expiration of the case plan or sooner if the parents have substantially complied with the case plan.

(9)  The court may at any time enter an order ending its jurisdiction over any child, except that, when a child has been returned to the parents under subsection (8), the court shall not terminate its jurisdiction over the child until 6 months after the return. Based on a report of the department or agency and any other relevant factors, the court shall then determine whether its jurisdiction should be continued or terminated in such a case; if its jurisdiction is to be terminated, the court shall enter an order to that effect.

History.--s. 20, ch. 78-414; s. 14, ch. 79-164; s. 2, ch. 80-102; s. 15, ch. 80-290; s. 11, ch. 83-217; s. 10, ch. 84-311; s. 6, ch. 85-80; s. 83, ch. 86-220; s. 8, ch. 87-289; s. 13, ch. 87-397; s. 30, ch. 88-337; s. 8, ch. 90-306; s. 71, ch. 91-45; s. 2, ch. 91-183; s. 5, ch. 92-158; s. 13, ch. 94-164; s. 62, ch. 95-228; s. 4, ch. 97-96; s. 8, ch. 97-101; s. 9, ch. 97-276.

¹Note.--Redesignated as subparagraph (2)(a)9. by s. 13, ch. 94-164.

²Note.--Redesignated as part III to conform to the repeal or transfer of the provisions of former parts II and IV by ch. 97-238.

³Note.--Section 9, ch. 97-276, amended paragraph (b) of subsection (4), effective July 1, 1998, to read:

(b)  If a diligent search is made to locate an adult relative willing and able to care for the child but, because no suitable relative is found, the child is placed with the department or a nonrelative custodian, both the department and the court shall consider transferring temporary legal custody to a willing adult relative or adult nonrelative approved by the court at a later date, but neither the department nor the court is obligated to so place the child if it is in the child's best interest to remain in the current placement.