Senate Bill sb1290c1
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Florida Senate - 2001 CS for SB 1290
By the Committee on Children and Families; and Senator
Campbell
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1 A bill to be entitled
2 An act relating to children; creating as a
3 pilot program an Office of Counsel for Children
4 in the tenth regional district of the
5 Department of Children and Family Services to
6 represent the legal interests of children in
7 out-of-home care pursuant to court order;
8 providing an administrative counsel for the
9 office; specifying qualifications; placing the
10 office in the Department of Legal Affairs for
11 budget purposes; requiring the court to appoint
12 the office to represent the legal inerests of
13 the child continued in out-of-home care;
14 providing for appointment by the Governor;
15 providing duties of the Office of Counsel for
16 Children; providing that a child may not waive
17 the right to counsel supplied by the office;
18 providing that the office is substituted for
19 the department in dependency cases when
20 appointed by the court; requiring a report to
21 the Legislature and the Governor; requiring the
22 office to conduct an evaluation of the pilot
23 program with a report to the Legislature and
24 Governor; providing for the expiration of the
25 pilot program; amending s. 39.013, F.S.;
26 providing that time limitations under ch. 39,
27 F.S., do not include continuances requested by
28 any party; providing limitations on
29 continuances; amending s. 39.402, F.S.;
30 providing that time limitations governing
31 placement of a child in a shelter do not
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1 include continuances requested by any party;
2 providing limitations on continuances; amending
3 s. 39.506, F.S.; eliminating the requirement
4 for a court's continued review of a child's
5 placement in a shelter; amending s. 39.601,
6 F.S.; modifying case-plan requirements;
7 requiring the department to adopt rules
8 governing the content and format of case plans;
9 amending s. 39.602, F.S.; eliminating certain
10 criteria in case plans when parents do not
11 participate and the child is in out-of-home
12 care; providing an effective date.
13
14 Be It Enacted by the Legislature of the State of Florida:
15
16 Section 1. (1) It is the intent of the Legislature
17 that children who are placed and maintained in out-of-home
18 care by court order under section 39.402, Florida Statutes,
19 receive cost-effective, competent representation of their
20 legal interests. It is further the intent of the Legislature
21 that providing for such representation be done in a manner
22 that promotes efficient and appropriate use of scarce judicial
23 resources; advances and appropriately balances the interests
24 of children in timely resolution of dependency litigation and
25 in family integrity and rehabilitation where appropriate; and
26 ensures prompt systematic response to any circumstance
27 adversely affecting the health, safety, and welfare of
28 children who are maintained in out-of-home care. The
29 Legislature recognizes that the legal interests of children
30 maintained in out-of-home care include at law, without
31 limitation, compliance with the objective criteria and
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1 procedures established by law, the expeditious resolution of
2 dependency proceedings so that the child can remain or return
3 home or be placed in a safe, nurturing, and permanent
4 environment, and the use of the least restrictive or
5 detrimental alternatives available.
6 (2)(a) There is created as a pilot program an Office
7 of Counsel for Children in the tenth regional district of the
8 Department of Children and Family Services. The office shall
9 be administered by an administrative counsel, who shall
10 oversee all administrative needs of the office, hire and
11 supervise staff attorneys and support staff, and serve as an
12 attorney for clients of the office as time permits. The
13 administrative counsel must be, and must have been for the
14 preceding 5 years, a member in good standing of The Florida
15 Bar or similar organization in another state, and must have 5
16 or more years of experience in the area of child advocacy,
17 child welfare, or juvenile law.
18 (b) The Governor shall appoint the administrative
19 counsel based upon an application process to be determined by
20 the Office of the Governor. The administrative counsel shall
21 be appointed for a term of 3 years and shall devote his or her
22 full business time and effort to the office. Vacancies shall
23 be filled in the same manner as appointments.
24 (c) The administrative counsel shall ensure that all
25 staff attorneys either have at the time of hiring, or acquire
26 through supplementary training conducted within a reasonable
27 period of time after hiring, sufficient knowledge regarding
28 the dynamics and needs of children, families, and foster
29 families in cases of child abuse, abandonment, and neglect to
30 perform the duties relating to legal representation of
31 dependent children. Relevant training may include programs or
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1 materials developed under the requirements of chapter 39,
2 Florida Statutes, by the Department of Children and Family
3 Services, the Department of Education, the Department of
4 Health, and the Office of the State Courts Administrator.
5 (d) The Office of Counsel for Children is assigned to
6 the Department of Legal Affairs for budget purposes only. The
7 administrative counsel for the Office of Counsel for Children
8 shall annually prepare a budget request that is not to be
9 changed by the Department of Legal Affairs but shall be
10 transmitted to the Governor for transmittal to the
11 Legislature. The Office of Counsel for Children is not subject
12 to control, supervision, or direction by the Department of
13 Legal Affairs in the performance of its duties.
14 (3)(a) When a court determines at a shelter hearing
15 held pursuant to section 39.402, Florida Statutes, that a
16 child shall be continued in out-of-home care, the court shall
17 appoint the Office of Counsel for Children to represent the
18 legal interests of the child and order that office substituted
19 as the petitioner. The Counsel for Children's representation
20 shall be limited to proceedings initiated under this chapter
21 only and any appeals associated with the proceedings. Upon
22 appointment of the office by the court, the Department of
23 Children and Family Services shall provide to the Office of
24 Counsel for Children, at a minimum, the name of the child, the
25 location and placement of the child, the name of the
26 department's authorized agent and contact information, copies
27 of all notices sent to the parent or legal custodian of the
28 child, and other information and records concerning the child.
29 Upon receipt of appointment, the administrative counsel shall
30 assign a staff attorney employed by the office to represent
31 the child's legal interests as set forth in chapter 39,
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1 Florida Statutes. The office and the assigned attorney must in
2 all circumstances fulfill the same duties of advocacy,
3 loyalty, confidentiality, and competent representation as are
4 due an adult client under the Rules of Professional
5 Responsibility.
6 (b) The office shall represent the child until
7 discharged by order of the court because permanency has been
8 achieved or whenever the court believes that the child no
9 longer needs ongoing representation of his or her legal
10 interests. Notwithstanding such discharge, the office may be
11 reassigned by the court at a later time if necessary.
12 (c) The Office of Counsel for Children shall:
13 1. Represent the legal interests of the minor in all
14 proceedings under chapter 39, Florida Statutes, and any
15 appeals arising therefrom.
16 2. Conduct an independent investigation to obtain
17 first-hand understanding of the situation of the child and the
18 family to the extent necessary to discharge the duties under
19 this section.
20 3. Monitor the actions of the Department of Children
21 and Family Services which impact on the child's legal
22 interests, including, without limitation, efforts by the
23 department to explore and investigate placement options,
24 pursuit of alternatives to continued removal of the child,
25 development of the case plan, and provision of services to all
26 parties under the case plan.
27 4. Ensure that all relevant evidence bearing on
28 decisions as to the child's best interests are timely provided
29 to the court at appropriate stages of the proceedings, through
30 efforts that include:
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1 a. Reviewing all relevant written records relative to
2 the child, including department, medical, educational, and
3 psychological records.
4 b. Conducting interviews, as appropriate and permitted
5 by law and the Rules of Professional Responsibility, with the
6 child's parents, foster parents, caseworkers, therapists,
7 counselors, school personnel, and mental health professionals,
8 and, if any injuries or abuse have occurred or are alleged,
9 reviewing photographs and available video or audio tape of
10 interviews with the minor.
11 c. Personally meeting with and interviewing the minor
12 as is appropriate given the psychosocial development of the
13 child to determine the minor's goals and concerns regarding
14 placement and permanency options and to monitor regularly the
15 appropriateness and safety of the child's placement.
16 5. Attend all court and administrative hearings and
17 file written petitions, motions, responses, reports,
18 objections, and any other litigation action necessary to
19 protect the legal interests of the child, including all
20 necessary efforts to enforce statutory time standards and
21 minimize the delay of proceedings, and as otherwise necessary
22 to safeguard the physical health, mental health, and welfare
23 of the child.
24 6. As appropriate, keep the minor advised of the
25 status of court proceedings, court actions, and proposals made
26 by other parties, as well as psychiatric, medical, or other
27 treatment or diagnostic services that are to be provided to
28 the minor.
29 7. Monitor all matters and actions by other parties
30 affecting the child's health, safety, and welfare in order to
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1 inform the court promptly and seek court intervention as
2 needed. This shall include:
3 a. Monitoring matters influencing the implementation
4 of the child's treatment plan and compliance with any
5 disposition orders to determine whether services ordered by
6 the court are actually provided, provided in a timely manner,
7 and accomplishing their intended goal.
8 b. Monitoring timely and complete development and
9 implementation of all aspects of the case plan.
10 c. Monitoring compliance with court orders, including
11 orders that particular services be made available to the
12 child, to his or her family of origin, and to foster parents.
13 d. Monitoring whether the child's family takes
14 advantage of court-ordered services and whether those services
15 are achieving their intended purpose.
16 e. Monitoring for any violation of orders by the
17 parties, new developments, or other changes that justify
18 review of the case.
19 8. Participate in mediation and negotiating
20 settlements.
21 (4)(a) All privileges provided by Florida Statutes
22 applicable to legal representation shall apply to the Office
23 of Counsel for Children. All personnel, including attorneys,
24 employees, and volunteers, of the Office of Counsel for
25 Children who come into regular contact with children shall be
26 subject to the same requirements to which department
27 contractors are subjected under section 39.001(2), Florida
28 Statutes. Administration of the requirements must be performed
29 by the Office of Counsel for Children. The right to duly
30 appointed counsel of the Office of Counsel for Children may
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1 not be waived by any child except pursuant to the Rules of
2 Professional Responsibility.
3 (b) Once counsel or the Office of Counsel for Children
4 has entered an appearance or been appointed by the court to
5 represent the child, the attorney or office shall continue to
6 represent the child throughout the proceedings. If the
7 attorney-client relationship is discontinued, the court shall
8 appoint appropriate new counsel for the remainder of the
9 proceedings.
10 (c) Upon being appointed by the court in a dependency
11 case, the Office of Counsel for Children is substituted for
12 the Department of Children and Family Services as the moving
13 party in the case.
14 (d) Appointment of the Office of Counsel for Children
15 does not eliminate the need for appointment of a guardian ad
16 litem pursuant to other provisions of law, including section
17 39.822, Florida Statutes.
18 (5) The Office of Counsel for Children shall identify
19 defined and measurable performance outcomes, including the
20 impact of counsel on child safety, improvements in the
21 provision of appropriate services, compliance with statutory
22 time standards, and any associated reduction in the length of
23 stay of children in state care. The office shall report
24 annually to the Legislature and the Governor regarding these
25 and other appropriate performance measures. For the purposes
26 of the pilot program, the Office of State Courts Administrator
27 shall conduct an evaluation of the establishment, operation,
28 and impact of the pilot program in meeting the legal needs of
29 dependent children. The Office of State Courts Administrator
30 shall submit a preliminary report to the Legislature and
31 Governor by October 1, 2003, and a final report by October 1,
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1 2004, which must include an evaluation of the pilot program,
2 findings on the feasibility of a statewide program, and
3 recommendations, if any, for locating, establishing, and
4 operating a statewide program.
5 (6) The Office of Counsel for Children pilot program
6 expires June 30, 2005, unless continued by action of the
7 Legislature.
8 Section 2. Subsection (10) of section 39.013, Florida
9 Statutes, is amended to read:
10 39.013 Procedures and jurisdiction; right to
11 counsel.--
12 (10) The time limitations in this chapter do not
13 include:
14 (a) Periods of delay resulting from a continuance
15 granted at the request or with the consent of the child's
16 counsel or the child's guardian ad litem, if one has been
17 appointed by the court, or, if the child is of sufficient
18 capacity to express reasonable consent, at the request or with
19 the consent of the child.
20 (b) Periods of delay resulting from a continuance
21 granted at the request of any party the attorney for the
22 department or petitioner, if the continuance is granted:
23 1. Because of an unavailability of evidence material
24 to the case when the requesting party attorney for the
25 department or petitioner has exercised due diligence to obtain
26 such evidence and there are substantial grounds to believe
27 that such evidence will be available within 30 days. However,
28 if the requesting party department or petitioner is not
29 prepared to proceed present its case within 30 days, the
30 parent may move for issuance of an order to show cause or the
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1 court on its own motion may impose appropriate sanctions,
2 which may include dismissal of the petition.
3 2. To allow the attorney for the department or
4 petitioner additional time to prepare the case and additional
5 time is justified because of an exceptional circumstance.
6 (c) Reasonable periods of delay necessary to
7 accomplish notice of the hearing to the child's parents;
8 however, the petitioner shall continue regular efforts to
9 provide notice to the parents during such periods of delay.
10 (d) Reasonable periods of delay resulting from a
11 continuance granted at the request of the parent or legal
12 custodian of a subject child.
13 (e) Notwithstanding the foregoing, continuances and
14 extensions of time are limited to the number of days necessary
15 to complete a necessary task in order to preserve the rights
16 of a party or the best interests of a child. Time is of the
17 essence for the best interests of dependent children in
18 conducting dependency proceedings in accordance with the time
19 limitations established in this chapter. Time limitations are
20 a right of the child which may not be waived, extended, or
21 continued at the request of any party in advance of the
22 particular circumstances or need arising upon which delay of
23 the proceedings may be warranted.
24 (f) A party may not be granted more than 60 days in
25 continuances or extensions of time within any 12-month period
26 during dependency proceedings, except under extraordinary
27 circumstances necessary to preserve the constitutional rights
28 of a party or when substantial evidence demonstrates that the
29 child's best interests will be affirmatively harmed without
30 the granting of a continuance or extension of time. Any
31 continuance or extension of time granted under this subsection
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1 must be limited to the number of days necessary under the
2 circumstances.
3 Section 3. Subsections (14) and (15) of section
4 39.402, Florida Statutes, are amended to read:
5 39.402 Placement in a shelter.--
6 (14) The time limitations in this section do not
7 include:
8 (a) Periods of delay resulting from a continuance
9 granted at the request or with the consent of the child's
10 counsel or the child's guardian ad litem, if one has been
11 appointed by the court, or, if the child is of sufficient
12 capacity to express reasonable consent, at the request or with
13 the consent of the child's attorney or the child's guardian ad
14 litem, if one has been appointed by the court, and the child.
15 (b) Periods of delay resulting from a continuance
16 granted at the request of any party the attorney for the
17 department, if the continuance is granted:
18 1. Because of an unavailability of evidence material
19 to the case when the requesting party attorney for the
20 department has exercised due diligence to obtain such evidence
21 and there are substantial grounds to believe that such
22 evidence will be available within 30 days. However, if the
23 requesting party department is not prepared to proceed present
24 its case within 30 days, the parent or legal custodian may
25 move for issuance of an order to show cause or the court on
26 its own motion may impose appropriate sanctions, which may
27 include dismissal of the petition.
28 2. To allow the attorney for the department additional
29 time to prepare the case and additional time is justified
30 because of an exceptional circumstance.
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1 (c) Reasonable periods of delay necessary to
2 accomplish notice of the hearing to the child's parents or
3 legal custodians; however, the petitioner shall continue
4 regular efforts to provide notice to the parents or legal
5 custodians during such periods of delay.
6 (d) Reasonable periods of delay resulting from a
7 continuance granted at the request of the parent or legal
8 custodian of a subject child.
9 (e) Notwithstanding the foregoing, continuances and
10 extensions of time are limited to the number of days
11 absolutely necessary to complete a necessary task in order to
12 preserve the rights of a party or the best interests of a
13 child. Time is of the essence for the best interests of
14 dependent children in conducting dependency proceedings in
15 accordance with the time limitations set forth in this
16 chapter. Time limitations are a right of the child which may
17 not be waived, extended, or continued at the request of any
18 party in advance of the particular circumstances or need
19 arising upon which delay of the proceedings may be warranted.
20 (f) A party may not be granted more than 60 days in
21 continuances or extensions of time within any 12-month period
22 during dependency proceedings except under extraordinary
23 circumstances necessary to preserve the constitutional rights
24 of a party or when substantial evidence demonstrates that the
25 child's best interests will be affirmatively harmed without
26 the granting of a continuance or extension of time. Any
27 continuance or extension of time granted under this subsection
28 must be strictly limited to the number of days necessary under
29 the circumstances.
30 (15) At the conclusion of a shelter hearing, the court
31 shall notify all parties in writing of the next scheduled
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1 hearing to review the shelter placement. Such hearing shall be
2 held no later than 30 days after placement of the child in
3 shelter status, in conjunction with the arraignment hearing,
4 and at such times as otherwise provided by law or determined
5 by the court to be necessary every 15 days thereafter until
6 the child is released from shelter status.
7 Section 4. Subsection (8) of section 39.506, Florida
8 Statutes, is amended to read:
9 39.506 Arraignment hearings.--
10 (8) At the arraignment hearing, and no more than every
11 15 days thereafter until the child is returned home or a
12 disposition hearing has been conducted, the court shall review
13 the necessity for the child's continued placement in the
14 shelter. The court shall also make a written determination
15 regarding the child's continued placement in shelter within 24
16 hours after any violation of the time requirements for the
17 filing of a petition or prior to the court's granting any
18 continuance as specified in subsection (5).
19 Section 5. Subsections (2) and (3) of section 39.601,
20 Florida Statutes, are amended and subsection (11) is added to
21 that section to read:
22 39.601 Case plan requirements.--
23 (2) When the child or parent is receiving services,
24 the case plan shall be filed with the court, for approval by
25 the court, at least 72 hours prior to the disposition hearing.
26 The case plan must be served on all parties whose whereabouts
27 are known at least 72 hours prior to the disposition hearing.
28 and must include, in addition to the requirements in
29 subsection (1), at a minimum:
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1 (a) A description of the problem being addressed that
2 includes the behavior or act of a parent resulting in risk to
3 the child and the reason for the department's intervention.
4 (b) A description of the tasks with which the parent
5 must comply and the services to be provided to the parent and
6 child specifically addressing the identified problem,
7 including:
8 1. Type of services or treatment.
9 2. Frequency of services or treatment. <
10 3. Location of the delivery of the services.
11 4. The accountable department staff or service
12 provider.
13 (c) A description of the measurable objectives,
14 including timeframes for achieving objectives, addressing the
15 identified problem.
16 (3) When the child is receiving services in an
17 out-of-home placement, the case plan must be filed with the
18 court, for approval by the court, at least 72 hours prior to
19 the disposition hearing. The case plan must be served on all
20 parties whose whereabouts are known at least 72 hours prior to
21 the disposition hearing. and must include, in addition to the
22 requirements in subsections (1) and (2), at a minimum:
23 (a) A description of the permanency goal for the
24 child, including the type of placement. Reasonable efforts to
25 place a child in a home that will serve as an adoptive
26 placement if reunification is not successful, or with a legal
27 custodian, may be made concurrently with reasonable efforts to
28 prevent removal of the child from the home or make it possible
29 for the child to return safely home.
30 (b) A description of the type of home or institution
31 in which the child is to be placed.
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1 (c) A description of the financial support obligation
2 to the child, including health insurance, of the child's
3 parents.
4 (d) A description of the visitation rights and
5 obligations of the parents during the period the child is in
6 care.
7 (e) A discussion of the safety and appropriateness of
8 the child's placement, which placement is intended to be safe,
9 the least restrictive and most family-like setting available
10 consistent with the best interest and special needs of the
11 child, and in as close proximity as possible to the child's
12 home. The plan must also establish the role for the foster
13 parents or legal custodians in the development of the services
14 which are to be provided to the child, foster parents, or
15 legal custodians. It must also address the child's need for
16 services while under the jurisdiction of the court and
17 implementation of these services in the case plan.
18 (f) A description of the efforts to be undertaken to
19 maintain the stability of the child's educational placement.
20 (g) A discussion of the department's plans to carry
21 out the judicial determination made by the court, with respect
22 to the child, in accordance with this chapter and applicable
23 federal regulations.
24 (h) A description of the plan for assuring that
25 services outlined in the case plan are provided to the child
26 and the child's parent or parents, to improve the conditions
27 in the home and facilitate either the safe return of the child
28 to the home or the permanent placement of the child.
29 (i) A description of the plan for assuring that
30 services as outlined in the case plan are provided to the
31 child, the child's parents, and the child's legal custodians,
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1 to address the needs of the child, and a discussion of the
2 appropriateness of the services.
3 (j) A description of the plan for assuring that
4 services are provided to the child and the child's legal
5 custodians or foster parents to address the needs of the child
6 while in an out-of-home placement, which shall include an
7 itemized list of costs to be borne by the parent associated
8 with any services or treatment that the parent and child are
9 expected to receive.
10 (k) A written notice to the parent that failure of the
11 parent to substantially comply with the case plan may result
12 in the termination of parental rights, and that a material
13 failure to substantially comply may result in the filing of a
14 petition for termination of parental rights sooner than the
15 compliance periods set forth in the case plan itself. The case
16 staffing committee shall coordinate its efforts with the child
17 protection team of the Department of Health.
18 (l) In the case of a child for whom the permanency
19 plan is adoption or placement in another permanent home,
20 documentation of the steps the agency is taking to find an
21 adoptive family or other permanent living arrangement for the
22 child, to place the child with an adoptive family, with a fit
23 and willing relative, with a legal custodian, or in another
24 planned permanent living arrangement, and to finalize the
25 adoption, legal guardianship, or long-term custodial
26 relationship. At a minimum, such documentation shall include
27 child-specific recruitment efforts such as the use of state,
28 regional, and national adoption exchanges, including
29 electronic exchange systems.
30 (11) The department shall adopt rules governing the
31 content and format of case plans and establishing procedures
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1 for developing, implementing, and changing the case plans. The
2 plans at a minimum must comply with the requirements of Title
3 IV-E of the Social Security Act, 42 U.S.C. 671 and 675 (1980),
4 as amended.
5 Section 6. Section 39.602, Florida Statutes, is
6 amended to read:
7 39.602 Case planning when parents do not participate
8 and the child is in out-of-home care.--
9 (1) In the event the parents will not or cannot
10 participate in preparation of a case plan, the department
11 shall submit a full explanation of the circumstances and state
12 the nature of its efforts to secure such persons'
13 participation in the preparation of a case plan.
14 (2) In a case in which the physical, emotional, or
15 mental condition or physical location of the parent is the
16 basis for the parent's nonparticipation, it is the burden of
17 the department to provide substantial evidence to the court
18 that such condition or location has rendered the parent unable
19 or unwilling to participate in the preparation of a case plan,
20 either pro se or through counsel. The supporting documentation
21 must be submitted to the court at the time the plan is filed.
22 (3) The plan must include, but need not be limited to,
23 the specific services to be provided by the department, the
24 goals and plans for the child, and the time for accomplishing
25 the provisions of the plan and for accomplishing permanence
26 for the child.
27 (3)(a)(4)(a) At least 72 hours prior to the hearing in
28 which the court will consider approval of the case plan, all
29 parties must be provided with a copy of the plan developed by
30 the department. If the location of one or both parents is
31 unknown, this must be documented in writing and included in
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1 the plan submitted to the court. After the filing of the
2 plan, if the location of an absent parent becomes known, that
3 parent must be served with a copy of the plan.
4 (b) Before the filing of the plan, the department
5 shall advise each parent, both orally and in writing, that the
6 failure of the parents to substantially comply with a plan may
7 result in the termination of parental rights, but only after
8 notice and hearing as provided in this chapter. If, after the
9 plan has been submitted to the court, an absent parent is
10 located, the department shall advise the parent, both orally
11 and in writing, that the failure of the parents to
12 substantially comply with a plan may result in termination of
13 parental rights, but only after notice and hearing as provided
14 in this chapter. Proof of written notification must be filed
15 with the court.
16 Section 7. This act shall take effect July 1, 2001.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 1290
3
4 Creates the Office of Counsel for Children as a pilot program.
5 Requires an evaluation of the pilot program that is to be
conducted by the Office of State Courts Administrator. A
6 preliminary report is to be submitted to the legislature by
October 1, 2003 and a final report by October 1, 2004.
7
Provides for the expiration of the pilot program June 30, 2005
8 unless continued by the legislature.
9 Places the Office of Counsel for Children in the Department of
Legal Affairs for budget purposes only. Stipulates that the
10 office will prepare its budget and will not be under the
control, supervision or direction of the Department of Legal
11 Affairs.
12 Adds 42 U.S.C. 675 of Title IV-E to the requirements with
which the Florida case plans must comply.
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Provides specific direction for the appointment of children to
14 the Office of Counsel for Children.
15 Clarifies the privileges being applied to the Office of
Counsel for Children as those provided in law to legal
16 representation. References to applying confidentiality to the
records of the office is eliminated
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