House Bill hb1343
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Florida House of Representatives - 2001 HB 1343
By Representative Greenstein
1 A bill to be entitled
2 An act relating to children; creating an Office
3 of Counsel for Children in the tenth regional
4 district of the Department of Children and
5 Family Services to represent the legal
6 interests of children in out-of-home care
7 pursuant to court order; providing an
8 administrative counsel for the office;
9 specifying qualifications; providing for
10 appointment by the Governor; providing duties
11 of the Office of Counsel for Children;
12 providing that a child may not waive the right
13 to counsel supplied by the office; providing
14 that the office is substituted for the
15 department in dependency cases when appointed
16 by the court; requiring a report to the
17 Legislature and the Governor; amending s.
18 39.013, F.S.; providing that time limitations
19 under ch. 39, F.S., do not include continuances
20 requested by any party; providing limitations
21 on continuances; amending s. 39.402, F.S.;
22 providing that time limitations governing
23 placement of a child in a shelter do not
24 include continuances requested by any party;
25 providing limitations on continuances; amending
26 s. 39.506, F.S.; eliminating the requirement
27 for a court's continued review of a child's
28 placement in a shelter; amending s. 39.601,
29 F.S.; modifying case-plan requirements;
30 requiring the department to adopt rules
31 governing the content and format of case plans;
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1 amending s. 39.602, F.S.; eliminating certain
2 criteria in case plans when parents do not
3 participate and the child is in out-of-home
4 care; providing an effective date.
5
6 Be It Enacted by the Legislature of the State of Florida:
7
8 Section 1. (1) It is the intent of the Legislature
9 that children who are placed and maintained in out-of-home
10 care by court order under section 39.402, Florida Statutes,
11 receive cost-effective, competent representation of their
12 legal interests. It is further the intent of the Legislature
13 that providing for such representation be done in a manner
14 that promotes efficient and appropriate use of scarce judicial
15 resources; advances and appropriately balances the interests
16 of children in timely resolution of dependency litigation and
17 in family integrity and rehabilitation where appropriate; and
18 ensures prompt systematic response to any circumstance
19 adversely affecting the health, safety, and welfare of
20 children who are maintained in out-of-home care. The
21 Legislature recognizes that the legal interests of children
22 maintained in out-of-home care include at law, without
23 limitation, compliance with the objective criteria and
24 procedures established by law, the expeditious resolution of
25 dependency proceedings so that the child can remain or return
26 home or be placed in a safe, nurturing, and permanent
27 environment, and the use of the least restrictive or
28 detrimental alternatives available.
29 (2)(a) There is created an Office of Counsel for
30 Children in the tenth regional district of the Department of
31 Children and Family Services. The office shall be administered
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1 by an administrative counsel, who shall oversee all
2 administrative needs of the office, hire and supervise staff
3 attorneys and support staff, and serve as an attorney for
4 clients of the office as time permits. The administrative
5 counsel must be, and must have been for the preceding 5 years,
6 a member in good standing of The Florida Bar or similar
7 organization in another state, and must have 5 or more years
8 of experience in the area of child advocacy, child welfare, or
9 juvenile law.
10 (b) The Governor shall appoint the administrative
11 counsel based upon an application process to be determined by
12 the Office of the Governor. The administrative counsel shall
13 be appointed for a term of 3 years and shall devote his or her
14 full business time and effort to the office. Vacancies shall
15 be filled in the same manner as appointments.
16 (c) The administrative counsel shall ensure that all
17 staff attorneys either have at the time of hiring, or acquire
18 through supplementary training conducted within a reasonable
19 period of time after hiring, sufficient knowledge regarding
20 the dynamics and needs of children, families, and foster
21 families in cases of child abuse, abandonment, and neglect to
22 perform the duties relating to legal representation of
23 dependent children. Relevant training may include programs or
24 materials developed under the requirements of chapter 39,
25 Florida Statutes, by the Department of Children and Family
26 Services, the Department of Education, the Department of
27 Health, and the Office of the State Courts Administrator.
28 (3)(a) Upon receipt of appointment pursuant to section
29 39.402, Florida Statutes, 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 at such point thereafter at which the court
9 believes that the child no longer needs ongoing representation
10 of his or her legal interests. Notwithstanding such discharge,
11 the office may be reassigned by the court at a later time if
12 necessary.
13 (c) The Office of Counsel for Children shall:
14 1. Represent the legal interests of the minor in all
15 proceedings under chapter 39, Florida Statutes, and any
16 appeals arising therefrom.
17 2. Conduct an independent investigation to obtain
18 first-hand understanding of the situation of the child and the
19 family to the extent necessary to discharge the duties under
20 this section.
21 3. Monitor the actions of the Department of Children
22 and Family Services which impact on the child's legal
23 interests, including, without limitation, efforts by the
24 department to explore and investigate placement options,
25 pursuit of alternatives to continued removal of the child,
26 development of the case plan, and provision of services to all
27 parties under the case plan.
28 4. Ensure that all relevant evidence bearing on
29 decisions as to the child's best interests are timely provided
30 to the court at appropriate stages of the proceedings, through
31 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 and confidentiality provided by
22 state law apply to records of the office, including the
23 attorney-client privilege, except when expressly provided by
24 law. All personnel, including attorneys, employees, and
25 volunteers, of the Office of Counsel for Children who come
26 into regular contact with children shall be subject to the
27 same requirements to which department contractors are
28 subjected under section 39.001(2), Florida Statutes.
29 Administration of the requirements must be performed by the
30 Office of Counsel for Children. The right to duly appointed
31 counsel of the Office of Counsel for Children may not be
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1 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.
26 Section 2. Subsection (10) of section 39.013, Florida
27 Statutes, is amended to read:
28 39.013 Procedures and jurisdiction; right to
29 counsel.--
30 (10) The time limitations in this chapter do not
31 include:
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1 (a) Periods of delay resulting from a continuance
2 granted at the request or with the consent of the child's
3 counsel or the child's guardian ad litem, if one has been
4 appointed by the court, or, if the child is of sufficient
5 capacity to express reasonable consent, at the request or with
6 the consent of the child.
7 (b) Periods of delay resulting from a continuance
8 granted at the request of any party the attorney for the
9 department or petitioner, if the continuance is granted:
10 1. Because of an unavailability of evidence material
11 to the case when the requesting party attorney for the
12 department or petitioner has exercised due diligence to obtain
13 such evidence and there are substantial grounds to believe
14 that such evidence will be available within 30 days. However,
15 if the requesting party department or petitioner is not
16 prepared to proceed present its case within 30 days, the
17 parent may move for issuance of an order to show cause or the
18 court on its own motion may impose appropriate sanctions,
19 which may include dismissal of the petition.
20 2. To allow the attorney for the department or
21 petitioner additional time to prepare the case and additional
22 time is justified because of an exceptional circumstance.
23 (c) Reasonable periods of delay necessary to
24 accomplish notice of the hearing to the child's parents;
25 however, the petitioner shall continue regular efforts to
26 provide notice to the parents during such periods of delay.
27 (d) Reasonable periods of delay resulting from a
28 continuance granted at the request of the parent or legal
29 custodian of a subject child.
30 (e) Notwithstanding the foregoing, continuances and
31 extensions of time are limited to the number of days necessary
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1 to complete a necessary task in order to preserve the rights
2 of a party or the best interests of a child. Time is of the
3 essence for the best interests of dependent children in
4 conducting dependency proceedings in accordance with the time
5 limitations established in this chapter. Time limitations are
6 a right of the child which may not be waived, extended, or
7 continued at the request of any party in advance of the
8 particular circumstances or need arising upon which delay of
9 the proceedings may be warranted.
10 (f) A party may not be granted more than 60 days in
11 continuances or extensions of time within any 12-month period
12 during dependency proceedings, except under extraordinary
13 circumstances necessary to preserve the constitutional rights
14 of a party or when substantial evidence demonstrates that the
15 child's best interests will be affirmatively harmed without
16 the granting of a continuance or extension of time. Any
17 continuance or extension of time granted under this subsection
18 must be limited to the number of days necessary under the
19 circumstances.
20 Section 3. Subsections (14) and (15) of section
21 39.402, Florida Statutes, are amended to read:
22 39.402 Placement in a shelter.--
23 (14) The time limitations in this section do not
24 include:
25 (a) Periods of delay resulting from a continuance
26 granted at the request or with the consent of the child's
27 counsel or the child's guardian ad litem, if one has been
28 appointed by the court, or, if the child is of sufficient
29 capacity to express reasonable consent, at the request or with
30 the consent of the child's attorney or the child's guardian ad
31 litem, if one has been appointed by the court, and the child.
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1 (b) Periods of delay resulting from a continuance
2 granted at the request of any party the attorney for the
3 department, if the continuance is granted:
4 1. Because of an unavailability of evidence material
5 to the case when the requesting party attorney for the
6 department has exercised due diligence to obtain such evidence
7 and there are substantial grounds to believe that such
8 evidence will be available within 30 days. However, if the
9 requesting party department is not prepared to proceed present
10 its case within 30 days, the parent or legal custodian may
11 move for issuance of an order to show cause or the court on
12 its own motion may impose appropriate sanctions, which may
13 include dismissal of the petition.
14 2. To allow the attorney for the department additional
15 time to prepare the case and additional time is justified
16 because of an exceptional circumstance.
17 (c) Reasonable periods of delay necessary to
18 accomplish notice of the hearing to the child's parents or
19 legal custodians; however, the petitioner shall continue
20 regular efforts to provide notice to the parents or legal
21 custodians during such periods of delay.
22 (d) Reasonable periods of delay resulting from a
23 continuance granted at the request of the parent or legal
24 custodian of a subject child.
25 (e) Notwithstanding the foregoing, continuances and
26 extensions of time are limited to the number of days
27 absolutely necessary to complete a necessary task in order to
28 preserve the rights of a party or the best interests of a
29 child. Time is of the essence for the best interests of
30 dependent children in conducting dependency proceedings in
31 accordance with the time limitations set forth in this
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1 chapter. Time limitations are a right of the child which may
2 not be waived, extended, or continued at the request of any
3 party in advance of the particular circumstances or need
4 arising upon which delay of the proceedings may be warranted.
5 (f) A party may not be granted more than 60 days in
6 continuances or extensions of time within any 12-month period
7 during dependency proceedings except under extraordinary
8 circumstances necessary to preserve the constitutional rights
9 of a party or when substantial evidence demonstrates that the
10 child's best interests will be affirmatively harmed without
11 the granting of a continuance or extension of time. Any
12 continuance or extension of time granted under this subsection
13 must be strictly limited to the number of days necessary under
14 the circumstances.
15 (15) At the conclusion of a shelter hearing, the court
16 shall notify all parties in writing of the next scheduled
17 hearing to review the shelter placement. Such hearing shall be
18 held no later than 30 days after placement of the child in
19 shelter status, in conjunction with the arraignment hearing,
20 and at such times as otherwise provided by law or determined
21 by the court to be necessary every 15 days thereafter until
22 the child is released from shelter status.
23 Section 4. Subsection (8) of section 39.506, Florida
24 Statutes, is amended to read:
25 39.506 Arraignment hearings.--
26 (8) At the arraignment hearing, and no more than every
27 15 days thereafter until the child is returned home or a
28 disposition hearing has been conducted, the court shall review
29 the necessity for the child's continued placement in the
30 shelter. The court shall also make a written determination
31 regarding the child's continued placement in shelter within 24
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1 hours after any violation of the time requirements for the
2 filing of a petition or prior to the court's granting any
3 continuance as specified in subsection (5).
4 Section 5. Subsections (2) and (3) of section 39.601,
5 Florida Statutes, are amended and subsection (11) is added to
6 that section to read:
7 39.601 Case plan requirements.--
8 (2) When the child or parent is receiving services,
9 the case plan shall be filed with the court, for approval by
10 the court, at least 72 hours prior to the disposition hearing.
11 The case plan must be served on all parties whose whereabouts
12 are known at least 72 hours prior to the disposition hearing.
13 and must include, in addition to the requirements in
14 subsection (1), at a minimum:
15 (a) A description of the problem being addressed that
16 includes the behavior or act of a parent resulting in risk to
17 the child and the reason for the department's intervention.
18 (b) A description of the tasks with which the parent
19 must comply and the services to be provided to the parent and
20 child specifically addressing the identified problem,
21 including:
22 1. Type of services or treatment.
23 2. Frequency of services or treatment.
24 3. Location of the delivery of the services.
25 4. The accountable department staff or service
26 provider.
27 (c) A description of the measurable objectives,
28 including timeframes for achieving objectives, addressing the
29 identified problem.
30 (3) When the child is receiving services in an
31 out-of-home placement, the case plan must be filed with the
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1 court, for approval by the court, at least 72 hours prior to
2 the disposition hearing. The case plan must be served on all
3 parties whose whereabouts are known at least 72 hours prior to
4 the disposition hearing. and must include, in addition to the
5 requirements in subsections (1) and (2), at a minimum:
6 (a) A description of the permanency goal for the
7 child, including the type of placement. Reasonable efforts to
8 place a child in a home that will serve as an adoptive
9 placement if reunification is not successful, or with a legal
10 custodian, may be made concurrently with reasonable efforts to
11 prevent removal of the child from the home or make it possible
12 for the child to return safely home.
13 (b) A description of the type of home or institution
14 in which the child is to be placed.
15 (c) A description of the financial support obligation
16 to the child, including health insurance, of the child's
17 parents.
18 (d) A description of the visitation rights and
19 obligations of the parents during the period the child is in
20 care.
21 (e) A discussion of the safety and appropriateness of
22 the child's placement, which placement is intended to be safe,
23 the least restrictive and most family-like setting available
24 consistent with the best interest and special needs of the
25 child, and in as close proximity as possible to the child's
26 home. The plan must also establish the role for the foster
27 parents or legal custodians in the development of the services
28 which are to be provided to the child, foster parents, or
29 legal custodians. It must also address the child's need for
30 services while under the jurisdiction of the court and
31 implementation of these services in the case plan.
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1 (f) A description of the efforts to be undertaken to
2 maintain the stability of the child's educational placement.
3 (g) A discussion of the department's plans to carry
4 out the judicial determination made by the court, with respect
5 to the child, in accordance with this chapter and applicable
6 federal regulations.
7 (h) A description of the plan for assuring that
8 services outlined in the case plan are provided to the child
9 and the child's parent or parents, to improve the conditions
10 in the home and facilitate either the safe return of the child
11 to the home or the permanent placement of the child.
12 (i) A description of the plan for assuring that
13 services as outlined in the case plan are provided to the
14 child, the child's parents, and the child's legal custodians,
15 to address the needs of the child, and a discussion of the
16 appropriateness of the services.
17 (j) A description of the plan for assuring that
18 services are provided to the child and the child's legal
19 custodians or foster parents to address the needs of the child
20 while in an out-of-home placement, which shall include an
21 itemized list of costs to be borne by the parent associated
22 with any services or treatment that the parent and child are
23 expected to receive.
24 (k) A written notice to the parent that failure of the
25 parent to substantially comply with the case plan may result
26 in the termination of parental rights, and that a material
27 failure to substantially comply may result in the filing of a
28 petition for termination of parental rights sooner than the
29 compliance periods set forth in the case plan itself. The case
30 staffing committee shall coordinate its efforts with the child
31 protection team of the Department of Health.
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1 (l) In the case of a child for whom the permanency
2 plan is adoption or placement in another permanent home,
3 documentation of the steps the agency is taking to find an
4 adoptive family or other permanent living arrangement for the
5 child, to place the child with an adoptive family, with a fit
6 and willing relative, with a legal custodian, or in another
7 planned permanent living arrangement, and to finalize the
8 adoption, legal guardianship, or long-term custodial
9 relationship. At a minimum, such documentation shall include
10 child-specific recruitment efforts such as the use of state,
11 regional, and national adoption exchanges, including
12 electronic exchange systems.
13 (11) The department shall adopt rules governing the
14 content and format of case plans and establishing procedures
15 for developing, implementing, and changing the case plans. The
16 plans at a minimum must comply with the requirements of Title
17 IV-E of the Social Security Act, 42 U.S.C. 671 (1980), as
18 amended.
19 Section 6. Section 39.602, Florida Statutes, is
20 amended to read:
21 39.602 Case planning when parents do not participate
22 and the child is in out-of-home care.--
23 (1) In the event the parents will not or cannot
24 participate in preparation of a case plan, the department
25 shall submit a full explanation of the circumstances and state
26 the nature of its efforts to secure such persons'
27 participation in the preparation of a case plan.
28 (2) In a case in which the physical, emotional, or
29 mental condition or physical location of the parent is the
30 basis for the parent's nonparticipation, it is the burden of
31 the department to provide substantial evidence to the court
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1 that such condition or location has rendered the parent unable
2 or unwilling to participate in the preparation of a case plan,
3 either pro se or through counsel. The supporting documentation
4 must be submitted to the court at the time the plan is filed.
5 (3) The plan must include, but need not be limited to,
6 the specific services to be provided by the department, the
7 goals and plans for the child, and the time for accomplishing
8 the provisions of the plan and for accomplishing permanence
9 for the child.
10 (3)(a)(4)(a) At least 72 hours prior to the hearing in
11 which the court will consider approval of the case plan, all
12 parties must be provided with a copy of the plan developed by
13 the department. If the location of one or both parents is
14 unknown, this must be documented in writing and included in
15 the plan submitted to the court. After the filing of the
16 plan, if the location of an absent parent becomes known, that
17 parent must be served with a copy of the plan.
18 (b) Before the filing of the plan, the department
19 shall advise each parent, both orally and in writing, that the
20 failure of the parents to substantially comply with a plan may
21 result in the termination of parental rights, but only after
22 notice and hearing as provided in this chapter. If, after the
23 plan has been submitted to the court, an absent parent is
24 located, the department shall advise the parent, both orally
25 and in writing, that the failure of the parents to
26 substantially comply with a plan may result in termination of
27 parental rights, but only after notice and hearing as provided
28 in this chapter. Proof of written notification must be filed
29 with the court.
30 Section 7. This act shall take effect July 1, 2001.
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2 SENATE SUMMARY
3 Creates an Office of Counsel for Children in the tenth
regional district of the Department of Children and
4 Family Services to represent the legal interests of
children in out-of-home care. Amends various sections of
5 ch. 39, F.S., relating to procedures for out-of-home
placement of a child. Provides that the provisions of ch.
6 39, F.S., relating to time limitations do not include
continuances requested by any party. Specifies additional
7 limitations. Deletes a requirement for a court's
continued review of a child's placement in a shelter.
8 Modifies case-plan requirements. Requires the department
to adopt rules governing case plans. Eliminates certain
9 criteria in case plans when parents do not participate
and the child is in out-of-home care.
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