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  1

  2         An act relating to child protection; creating

  3         s. 383.50, F.S.; prescribing duties of

  4         hospitals and fire stations with respect to

  5         abandoned newborn infants, as defined;

  6         providing for anonymity of such infants'

  7         parents; amending s. 39.01, F.S.; redefining

  8         the term "abandoned"; amending s. 39.201, F.S.;

  9         revising duties of the central abuse hotline to

10         accept specified reports of abandoned newborn

11         infants and disclose names of eligible licensed

12         child-placing agencies; amending s. 63.167,

13         F.S.; providing duties of the state adoption

14         information center with respect to maintaining

15         a list of child-placing agencies with which

16         abandoned newborns may be placed; creating s.

17         63.0423, F.S.; prescribing rights, duties and

18         procedures for licensed child-placing agencies

19         with respect to custody, placement, and

20         adoption of abandoned newborn infants;

21         providing limited relief from judgment of

22         termination of parental rights; amending s.

23         63.182, F.S.; providing a statute of repose for

24         setting aside adoptions; providing duties of

25         the Department of Children and Family Services

26         in conjunction with the Department of Health to

27         produce media campaign with respect to

28         abandoned newborns; creating s. 827.035, F.S.;

29         providing that certain actions with respect to

30         a newborn infant shall not constitute neglect

31


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  1         or contributing to the dependency of a child;

  2         providing an effective date.

  3

  4         WHEREAS, in this state and in the nation, newborn

  5  infants have suffered and died as the result of abandonment in

  6  life-threatening situations, and

  7         WHEREAS, the parents of newborn infants are often under

  8  severe emotional stress, and

  9         WHEREAS, anonymity, confidentiality, and freedom from

10  prosecution for parents may encourage them to leave a newborn

11  infant safely and thus save the newborn infant's life, NOW,

12  THEREFORE,

13

14  Be It Enacted by the Legislature of the State of Florida:

15

16         Section 1.  Section 383.50, Florida Statutes, is

17  created to read:

18         383.50  Treatment of abandoned newborn infant.--

19         (1)  As used in this section, the term "newborn infant"

20  means a child that a licensed physician reasonably believes to

21  be approximately 3 days old or younger at the time the child

22  is left at a hospital or a fire station.

23         (2)  There is a presumption that the parent who leaves

24  the newborn infant in accordance with this section intended to

25  leave the newborn infant and consented to termination of

26  parental rights.

27         (3)  Each fire station staffed with full-time

28  firefighters or emergency medical technicians shall accept any

29  newborn infant left with a firefighter or emergency medical

30  technician. The fire station shall consider these actions as

31  implied consent to and shall:


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  1         (a)  Provide emergency medical services to the newborn

  2  infant to the extent he or she is trained to provide those

  3  services, and

  4         (b)  Arrange for the immediate transportation of the

  5  newborn infant to the nearest hospital with emergency

  6  services. Any firefighter or emergency medical technician

  7  accepting or providing emergency medical services to a newborn

  8  infant pursuant to this subsection is immune from criminal or

  9  civil liability for having performed the act. Nothing in this

10  subsection limits liability for negligence. 

11         (4)  Each hospital of this state subject to s. 395.1041

12  shall, and any other hospital may, admit and provide all

13  necessary emergency services and care, as defined in s.

14  395.002(10), to any newborn infant left with the hospital in

15  accordance with this section. The hospital or any of its

16  licensed health care professionals shall consider these

17  actions as implied consent for treatment, and a hospital

18  accepting physical custody of a newborn infant has implied

19  consent to perform all necessary emergency services and care.

20  The hospital or any of its licensed health care professionals

21  is immune from criminal or civil liability for acting in good

22  faith in accordance with this section. Nothing in this

23  subsection limits liability for negligence.

24         (5)  Except where there is actual or suspected child

25  abuse or neglect, any parent who leaves a newborn infant with

26  a firefighter or emergency medical technician at a fire

27  station or brings a newborn infant to an emergency room of a

28  hospital and expresses an intent to leave the newborn infant

29  and not return has the absolute right to remain anonymous and

30  to leave at any time and may not be pursued or followed unless

31  the parent seeks to reclaim the newborn infant.


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  1         (6)  A parent of a newborn infant left at a hospital or

  2  a fire station under this section may claim his or her newborn

  3  infant up until the court enters a judgment terminating his or

  4  her parental rights. A claim of parental rights of the newborn

  5  infant must be made to the entity having physical or legal

  6  custody of the newborn infant or to the circuit court before

  7  whom proceedings involving the newborn infant are pending.

  8         (7)  Upon admitting a newborn infant under this

  9  section, the hospital shall immediately contact a local

10  licensed child-placing agency or alternatively contact the

11  statewide central abuse hotline for the name of a licensed

12  child-placing agency for purposes of transferring physical

13  custody of the newborn infant. The hospital shall notify the

14  licensed child-placing agency that a newborn infant has been

15  left with the hospital and approximately when the licensed

16  child-placing agency can take physical custody of the child.

17  In cases where there is actual or suspected child abuse or

18  neglect, the hospital or any of its licensed health care

19  professionals shall report the actual or suspected child abuse

20  or neglect in accordance with ss. 39.1023 and 395.1023 in lieu

21  of contacting a licensed child-placing agency.

22         (8)  Any newborn infant admitted to a hospital in

23  accordance with this section is presumed eligible for coverage

24  under Medicaid, subject to federal rules.

25         (9)  A newborn infant left at a fire station or a

26  hospital in accordance with this section shall not be deemed

27  abandoned subject to reporting and investigation requirements

28  under s. 39.201 unless there is actual or suspected child

29  abuse or until the department takes physical custody of the

30  child.

31


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  1         (10)  A criminal investigation shall not be initiated

  2  solely because a newborn infant is left at a hospital under

  3  this section unless there is actual or suspected child abuse

  4  or neglect.

  5         Section 2.  Subsections (1) and (30) of section 39.01,

  6  Florida Statutes, are amended to read:

  7         39.01  Definitions.--When used in this chapter, unless

  8  the context otherwise requires:

  9         (1)  "Abandoned" means a situation in which the parent

10  or legal custodian of a child or, in the absence of a parent

11  or legal custodian, the caregiver responsible for the child's

12  welfare, while being able, makes no provision for the child's

13  support and makes no effort to communicate with the child,

14  which situation is sufficient to evince a willful rejection of

15  parental obligations. If the efforts of such parent or legal

16  custodian, or caregiver primarily responsible for the child's

17  welfare, to support and communicate with the child are, in the

18  opinion of the court, only marginal efforts that do not evince

19  a settled purpose to assume all parental duties, the court may

20  declare the child to be abandoned. The term "abandoned" does

21  not include an abandoned newborn infant as described in s.

22  383.50, a "child in need of services" as defined in chapter

23  984, or a "family in need of services" as defined in chapter

24  984. The incarceration of a parent, legal custodian, or

25  caregiver responsible for a child's welfare may support a

26  finding of abandonment.

27         (30)  "Harm" to a child's health or welfare can occur

28  when any person:

29         (a)  Inflicts or allows to be inflicted upon the child

30  physical, mental, or emotional injury. In determining whether

31  harm has occurred, the following factors must be considered in


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  1  evaluating any physical, mental, or emotional injury to a

  2  child: the age of the child; any prior history of injuries to

  3  the child; the location of the injury on the body of the

  4  child; the multiplicity of the injury; and the type of trauma

  5  inflicted. Such injury includes, but is not limited to:

  6         1.  Willful acts that produce the following specific

  7  injuries:

  8         a.  Sprains, dislocations, or cartilage damage.

  9         b.  Bone or skull fractures.

10         c.  Brain or spinal cord damage.

11         d.  Intracranial hemorrhage or injury to other internal

12  organs.

13         e.  Asphyxiation, suffocation, or drowning.

14         f.  Injury resulting from the use of a deadly weapon.

15         g.  Burns or scalding.

16         h.  Cuts, lacerations, punctures, or bites.

17         i.  Permanent or temporary disfigurement.

18         j.  Permanent or temporary loss or impairment of a body

19  part or function.

20

21  As used in this subparagraph, the term "willful" refers to the

22  intent to perform an action, not to the intent to achieve a

23  result or to cause an injury.

24         2.  Purposely giving a child poison, alcohol, drugs, or

25  other substances that substantially affect the child's

26  behavior, motor coordination, or judgment or that result in

27  sickness or internal injury.  For the purposes of this

28  subparagraph, the term "drugs" means prescription drugs not

29  prescribed for the child or not administered as prescribed,

30  and controlled substances as outlined in Schedule I or

31  Schedule II of s. 893.03.


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  1         3.  Leaving a child without adult supervision or

  2  arrangement appropriate for the child's age or mental or

  3  physical condition, so that the child is unable to care for

  4  the child's own needs or another's basic needs or is unable to

  5  exercise good judgment in responding to any kind of physical

  6  or emotional crisis.

  7         4.  Inappropriate or excessively harsh disciplinary

  8  action that is likely to result in physical injury, mental

  9  injury as defined in this section, or emotional injury.  The

10  significance of any injury must be evaluated in light of the

11  following factors:  the age of the child; any prior history of

12  injuries to the child; the location of the injury on the body

13  of the child; the multiplicity of the injury; and the type of

14  trauma inflicted.  Corporal discipline may be considered

15  excessive or abusive when it results in any of the following

16  or other similar injuries:

17         a.  Sprains, dislocations, or cartilage damage.

18         b.  Bone or skull fractures.

19         c.  Brain or spinal cord damage.

20         d.  Intracranial hemorrhage or injury to other internal

21  organs.

22         e.  Asphyxiation, suffocation, or drowning.

23         f.  Injury resulting from the use of a deadly weapon.

24         g.  Burns or scalding.

25         h.  Cuts, lacerations, punctures, or bites.

26         i.  Permanent or temporary disfigurement.

27         j.  Permanent or temporary loss or impairment of a body

28  part or function.

29         k.  Significant bruises or welts.

30

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  1         (b)  Commits, or allows to be committed, sexual

  2  battery, as defined in chapter 794, or lewd or lascivious

  3  acts, as defined in chapter 800, against the child.

  4         (c)  Allows, encourages, or forces the sexual

  5  exploitation of a child, which includes allowing, encouraging,

  6  or forcing a child to:

  7         1.  Solicit for or engage in prostitution; or

  8         2.  Engage in a sexual performance, as defined by

  9  chapter 827.

10         (d)  Exploits a child, or allows a child to be

11  exploited, as provided in s. 450.151.

12         (e)  Abandons the child. Within the context of the

13  definition of "harm," the term "abandons the child" means that

14  the parent or legal custodian of a child or, in the absence of

15  a parent or legal custodian, the person responsible for the

16  child's welfare, while being able, makes no provision for the

17  child's support and makes no effort to communicate with the

18  child, which situation is sufficient to evince a willful

19  rejection of parental obligation.  If the efforts of such a

20  parent or legal custodian or person primarily responsible for

21  the child's welfare to support and communicate with the child

22  are only marginal efforts that do not evince a settled purpose

23  to assume all parental duties, the child may be determined to

24  have been abandoned. The term "abandoned" does not include an

25  abandoned newborn infant as described in s. 383.50.

26         (f)  Neglects the child. Within the context of the

27  definition of "harm," the term "neglects the child" means that

28  the parent or other person responsible for the child's welfare

29  fails to supply the child with adequate food, clothing,

30  shelter, or health care, although financially able to do so or

31  although offered financial or other means to do so.  However,


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  1  a parent or legal custodian who, by reason of the legitimate

  2  practice of religious beliefs, does not provide specified

  3  medical treatment for a child may not be considered abusive or

  4  neglectful for that reason alone, but such an exception does

  5  not:

  6         1.  Eliminate the requirement that such a case be

  7  reported to the department;

  8         2.  Prevent the department from investigating such a

  9  case; or

10         3.  Preclude a court from ordering, when the health of

11  the child requires it, the provision of medical services by a

12  physician, as defined in this section, or treatment by a duly

13  accredited practitioner who relies solely on spiritual means

14  for healing in accordance with the tenets and practices of a

15  well-recognized church or religious organization.

16         (g)  Exposes a child to a controlled substance or

17  alcohol. Exposure to a controlled substance or alcohol is

18  established by:

19         1.  Use by the mother of a controlled substance or

20  alcohol during pregnancy when the child, at birth, is

21  demonstrably adversely affected by such usage; or

22         2.  Continued chronic and severe use of a controlled

23  substance or alcohol by a parent when the child is

24  demonstrably adversely affected by such usage.

25

26  As used in this paragraph, the term "controlled substance"

27  means prescription drugs not prescribed for the parent or not

28  administered as prescribed and controlled substances as

29  outlined in Schedule I or Schedule II of s. 893.03.

30         (h)  Uses mechanical devices, unreasonable restraints,

31  or extended periods of isolation to control a child.


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  1         (i)  Engages in violent behavior that demonstrates a

  2  wanton disregard for the presence of a child and could

  3  reasonably result in serious injury to the child.

  4         (j)  Negligently fails to protect a child in his or her

  5  care from inflicted physical, mental, or sexual injury caused

  6  by the acts of another.

  7         (k)  Has allowed a child's sibling to die as a result

  8  of abuse, abandonment, or neglect.

  9         (l)  Makes the child unavailable for the purpose of

10  impeding or avoiding a protective investigation unless the

11  court determines that the parent, legal custodian, or

12  caregiver was fleeing from a situation involving domestic

13  violence.

14         Section 3.  Present paragraphs (f) and (g) of

15  subsection (2) of section 39.201, Florida Statutes, are

16  redesignated as paragraphs (g) and (h), respectively, and a

17  new paragraph (f) is added to that subsection to read:

18         39.201  Mandatory reports of child abuse, abandonment,

19  or neglect; mandatory reports of death; central abuse

20  hotline.--

21         (2)

22         (f)  Reports involving abandoned newborn infants as

23  described in s. 383.50 shall be made and received by the

24  department.

25         1.  If the report is of an abandoned newborn infant as

26  described in s. 383.50 and there is no indication of abuse,

27  neglect, or abandonment of the infant other than that

28  necessarily entailed in the infant having been left at a fire

29  station or hospital, the department shall provide to the

30  caller the name of a licensed child-placing agency on a

31  rotating basis from a list of licensed child-placing agencies


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  1  eligible and required to accept physical custody of and to

  2  place newborn infants left at a hospital or a fire station.

  3  The report shall not be considered a report of abuse, neglect,

  4  or abandonment solely because the infant has been left at a

  5  hospital pursuant to s. 383.50.

  6         2.  If the caller reports indications of abuse or

  7  neglect beyond that necessarily entailed in the infant having

  8  been left at a fire station or hospital, the report shall be

  9  considered as a report of abuse, neglect, or abandonment and

10  shall be subject to the requirements of s. 39.395 and all

11  other relevant provisions of this chapter, notwithstanding any

12  provisions of chapter 383.

13         Section 4.  Paragraph (f) is added to subsection (2) of

14  section 63.167, Florida Statutes, to read:

15         63.167  State adoption information center.--

16         (2)  The functions of the state adoption information

17  center shall include:

18         (f)  Maintaining a list of licensed child-placing

19  agencies eligible and willing to take custody of and place

20  newborn infants left at a hospital, pursuant to s. 383.50. The

21  names and contact information for the licensed child-placing

22  agencies on the list shall be provided on a rotating basis to

23  the statewide central abuse hotline.

24         Section 5.  Section 63.0423, Florida Statutes, is

25  created to read:

26         63.0423  Procedures with respect to abandoned

27  newborns.--

28         (1)  A licensed child-placing agency that takes

29  physical custody of a newborn infant left at a hospital or a

30  fire station pursuant to s. 383.50, shall assume

31  responsibility for all medical costs and all other costs


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  1  associated with the emergency services and care of the newborn

  2  infant from the time the licensed child-placing agency takes

  3  physical custody of the newborn infant.

  4         (2)  The licensed child-placing agency shall

  5  immediately seek an order from the circuit court for emergency

  6  custody of the newborn infant. The emergency custody order

  7  shall remain in effect until the court orders preliminary

  8  approval of placement of the newborn infant in the prospective

  9  home, at which time the prospective adoptive parents become

10  guardians pending termination of parental rights and

11  finalization of adoption or until the court orders otherwise.

12  The licensed child-placing agency may seek to temporarily

13  place the newborn infant in a prospective adoptive home as

14  soon as possible.

15         (3)  The licensed child-placing agency that takes

16  physical custody of the newborn infant shall immediately

17  request assistance from law enforcement officials to

18  investigate and determine, through the Missing Children

19  Information Clearinghouse, the National Center for Missing and

20  Exploited Children, and any other national and state

21  resources, whether or not the newborn infant is a missing

22  child.

23         (4)  Within 7 days after accepting physical custody of

24  the newborn infant, the licensed child-placing agency shall

25  initiate a diligent search to notify and to obtain consent

26  from a parent whose identity or location is unknown, other

27  than the parent who has left a newborn infant at a fire

28  station or a hospital in accordance with s. 383.50. The

29  diligent search must include, at a minimum, inquiries of all

30  known relatives of the parent, inquiries of all offices or

31  program areas of the department likely to have information


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  1  about the parent, inquiries of other state and federal

  2  agencies likely to have information about the parent,

  3  inquiries of appropriate utility and postal providers and

  4  inquiries of appropriate law enforcement agencies.

  5  Constructive notice must also be provided pursuant to chapter

  6  49 in the county where the newborn infant was left and in the

  7  county where the petition to terminate parental rights will be

  8  filed. The constructive notice must include at a minimum,

  9  available identifying information, and information on whom a

10  parent must contact in order to assert a claim of parental

11  rights of the newborn infant and how to assert that claim. If

12  a parent is identified and located, notice of the adjudicatory

13  hearing shall be provided. If a parent can not be identified

14  or located subsequent to the diligent search and constructive

15  notice, the licensed child-placing agency shall file an

16  affidavit of diligent search at the same time that the

17  petition to terminate parental rights is filed.

18         (5)  A petition for termination of parental rights

19  under this section may not be filed until 30 days after the

20  date the newborn infant was left in accordance with s. 383.50.

21  A petition for termination of parental rights may not be

22  granted until consent to adoption or an affidavit of

23  nonpaternity has been executed by a parent of the newborn

24  infant as set forth in s. 63.062, a parent has failed to

25  reclaim or claim the newborn infant within the specified time

26  period, or the consent of a parent is otherwise waived by the

27  court.

28         (6)  A claim of parental rights of the newborn infant

29  must be made to the entity having physical or legal custody of

30  the newborn infant or to the circuit court before whom

31  proceedings involving the newborn infant are pending. A claim


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  1  of parental rights of the newborn infant may not be made after

  2  the judgment to terminate parental rights is entered, except

  3  as otherwise provided by subsection (10).

  4         (7)  If a claim of parental rights of a newborn infant

  5  is made before the judgement to terminate parental rights is

  6  entered, the circuit court shall hold the action for

  7  termination of parental rights pending subsequent adoption in

  8  abeyance for a period of time not to exceed 60 days.

  9         (a)  The court shall order scientific testing to

10  determine maternity or paternity at the expense of the parent

11  claiming parental rights unless maternity or paternity has

12  been previously established legally or by scientific testing.

13         (b)  The court may appoint a guardian ad litem for the

14  newborn infant and order whatever investigation, home

15  evaluation and psychological evaluation are necessary to

16  determine what is in the best interest of the newborn infant.

17         (c)  The court may not terminate parental rights solely

18  on the basis that the parent left a newborn infant at a

19  hospital or fire station in accordance with s. 383.50.

20         (d)  The court shall enter a judgment with written

21  findings of fact and conclusions of law.

22         (8)  Within 24 hours after filing the judgment, the

23  clerk of the court shall mail a copy of the judgment to the

24  department, the petitioner, and the persons whose consent were

25  required, if known. The clerk shall execute a certificate of

26  each mailing.

27         (9)(a)  A judgment terminating parental rights pending

28  adoption is voidable, and any later judgment of adoption of

29  that minor is voidable, if, upon the motion of a parent, the

30  court finds that a person knowingly gave false information

31  that prevented the parent from timely making known his or her


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  1  desire to assume parental responsibilities toward the minor or

  2  from exercising his or her parental rights. A motion under

  3  this subsection must be filed with the court originally

  4  entering the judgment. The motion must be filed within a

  5  reasonable time, but not later than 2 years after the entry of

  6  the judgment terminating parental rights.

  7         (b)  No later than 30 days after the filing of a motion

  8  under this subsection, the court must conduct a preliminary

  9  hearing to determine what contact, if any, will be permitted

10  between a parent and the child pending resolution of the

11  motion. Such contact may be allowed only if it is requested by

12  a parent who has appeared at the hearing. If the court orders

13  contact between a parent and child, the order must be issued

14  in writing as expeditiously as possible and must state with

15  specificity any provisions regarding contact with persons

16  other than those with whom the child resides.

17         (c)  At the preliminary hearing the court, upon the

18  motion of any party or upon its own motion, may order

19  scientific testing to determine the paternity or maternity of

20  the minor if the person seeking to set aside the judgment is

21  alleging to be the child's parent and that fact has not

22  previously been determined by legal proceedings or scientific

23  testing. The court may order supervised visitation with a

24  person for whom scientific testing for paternity or maternity

25  has been ordered. Such visitation shall be conditioned upon

26  the filing of test results with the court and those results

27  establishing that person's paternity or maternity of the

28  minor.

29         (d)  No later than 45 days after the preliminary

30  hearing, the court must conduct a final hearing on the motion

31


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  1  to set aside the judgment and enter its written order as

  2  expeditiously as possible thereafter.

  3         (10)  Except to the extent expressly provided in this

  4  section, proceedings initiated by a licensed child-placing

  5  agency for the termination of parental rights and subsequent

  6  adoption of a newborn left at a hospital or a fire station in

  7  accordance with s. 383.50 shall be conducted pursuant to

  8  chapter 63.

  9         Section 6.  Section 63.182, Florida Statutes, is

10  amended to read:

11         (Substantial rewording of section. See

12         s. 63.182, F.S., for present text.)

13         63.182  Statute of repose.--Notwithstanding s. 95.031

14  or s. 95.11 or any other statute:

15         (1)  An action or proceeding of any kind to vacate, set

16  aside, or otherwise nullify a judgment of adoption or an

17  underlying judgment terminating parental rights on any ground,

18  including duress but excluding fraud, shall in no event be

19  filed more than 1 year after entry of the judgment terminating

20  parental rights.

21         (2)  An action or proceeding of any kind to vacate, set

22  aside, or otherwise nullify a judgment of adoption or an

23  underlying judgment terminating parental rights on grounds of

24  fraud shall in no event be filed more than 2 years after entry

25  of the judgment terminating parental rights.

26         Section 7.  Department; duties with respect to

27  abandoned newborns.--The Department of Health in conjunction

28  with the Department of Children and Family Services shall

29  produce a media campaign to promote safe placement

30  alternatives for newborn infants, to inform the public

31  concerning the confidentiality and limited immunity from


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  1  criminal prosecution offered to a parent who leaves a newborn

  2  infant at a hospital or a fire station under s. 383.50,

  3  Florida Statutes, and the rights of parents to reclaim or

  4  claim their newborn infant within specified time periods, and

  5  to publicize adoption procedures.

  6         Section 8.  Section 827.035, Florida Statutes, is

  7  created to read:

  8         827.035  Newborn infants.--It shall not constitute

  9  neglect of a child pursuant to s. 827.03 or contributing to

10  the dependency of a child pursuant to s. 827.04, if a parent

11  leaves a newborn infant, as defined in s. 383.50, at a

12  hospital or fire station or brings a newborn infant to an

13  emergency room and expresses an intent to leave the infant and

14  not return, in compliance with s. 383.50.

15         Section 9.  This act shall take effect July 1, 2000.

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