Senate Bill sb0020c1

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    Florida Senate - 2007                             CS for SB 20

    By the Committee on Judiciary; and Senators Lynn and Rich





    590-2218-07

  1                      A bill to be entitled

  2         An act relating to child visitation; creating

  3         s. 39.0139, F.S.; providing a short title;

  4         providing legislative findings and intent;

  5         creating a presumption; providing for hearing;

  6         providing conditions for visitation or other

  7         contact; providing additional considerations

  8         for visitation or other contact; amending ss.

  9         39.402, 39.506, 39.509, 39,521, F.S.;

10         subjecting specified visitation orders to s.

11         39.0139, F.S.; creating s. 753.01, F.S.;

12         defining terms; creating s. 753.02, F.S.;

13         providing responsibilities for the

14         Clearinghouse on Supervised Visitation;

15         creating s. 753.03, F.S.; providing for the

16         development of standards; providing membership

17         for an advisory board; providing for reports;

18         creating s. 753.04, F.S.; providing interim

19         standards for supervised visitation programs;

20         creating s. 753.05, F.S.; providing for

21         referrals related to child sexual abuse;

22         repealing ss. 753.001, 753.002, and 753.004,

23         F.S., relating to the Florida Family Visitation

24         Network; providing an effective date.

25  

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

27  

28         Section 1.  Section 39.0139, Florida Statutes, is

29  created to read:

30         39.0139  Visitation restrictions.--

31  

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 1         (1)  SHORT TITLE.--This act may be cited as the

 2  "Keeping Children Safe Act."

 3         (2)  LEGISLATIVE FINDINGS AND INTENT.--

 4         (a)  The Legislature finds that for some children who

 5  are abused, abandoned, or neglected by a parent or other

 6  caregiver, abuse may include sexual abuse.

 7         (b)  The Legislature also finds that these same

 8  children are at risk of suffering from further harm during

 9  visitation or other contact.

10         (c)  The Legislature further finds that visitation or

11  other contact with the child may be used to influence the

12  child's testimony.

13         (d)  Therefore, it is the intent of the Legislature to

14  protect children and reduce the risk of further harm to

15  children who have been sexually abused or exploited by a

16  parent or other caregiver by placing additional requirements

17  on judicial determinations related to visitation and other

18  contact.

19         (3)  PROCEDURES TO PROTECT CHILD SAFETY DURING

20  VISITATION AND OTHER CONTACT.--

21         (a)  A rebuttable presumption of detriment to a child

22  is created when a parent or caregiver:

23         1.  Has been the subject of a report to the child abuse

24  hotline alleging sexual abuse of any child as defined in s.

25  39.01; or

26         2.  Has been found guilty of, regardless of

27  adjudication, or has entered a plea of guilty or nolo

28  contendere to, charges under the following statutes, or

29  substantially similar statutes of other jurisdictions:

30         a.  Section 787.04, relating to removing minors from

31  the state or concealing minors contrary to court order;

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 1         b.  Section 794.011, relating to sexual battery;

 2         c.  Section 798.02, relating to lewd and lascivious

 3  behavior;

 4         d.  Chapter 800, relating to lewdness and indecent

 5  exposure;

 6         e.  Section 826.04, relating to incest; or

 7         f.  Chapter 827, relating to the abuse of children.

 8         3.  Has been determined by a court to be a sexual

 9  predator as defined in s. 775.21 or received a substantially

10  similar designation under the laws of another jurisdiction.

11         (b)  For purposes of this subsection, the term

12  "substantially similar" has the same meaning as in s.

13  39.806(1)(d)2.

14         (4)  HEARINGS ON VISITATION OR OTHER CONTACT.--A person

15  who meets the criteria set forth in any category in subsection

16  (3) may visit or have other contact with a child only after a

17  hearing and an order by the court which allows the visitation

18  or other contact. At such a hearing:

19         (a)  The court must appoint an attorney ad litem or a

20  guardian ad litem if one has not already been appointed. Any

21  attorney ad litem or guardian ad litem appointed must have

22  special training on the dynamics of sexual abuse.

23         (b)  The court may receive any relevant and material

24  evidence submitted, including written and oral reports to the

25  extent of their probative value. These reports and evidence

26  may be received by the court in its effort to determine the

27  action to be taken with regard to the child and may be relied

28  upon to the extent of their probative value, even though not

29  competent in an adjudicatory hearing.

30         (c)  If the court finds the person proves by clear and

31  convincing evidence that the safety, well-being, and physical,

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 1  mental, and emotional health of a child are not endangered by

 2  such visitation or contact, the presumption is rebutted and

 3  the court may allow visitation or other contact. The court

 4  shall enter a written order specifying any conditions it finds

 5  necessary to protect the child.

 6         (d)  If the court finds the person did not rebut the

 7  presumption established above, the court shall enter a written

 8  order prohibiting or restricting visitation or other contact

 9  with the child.

10         (5)  CONDITIONS FOR VISITATION OR OTHER CONTACT.--Any

11  visitation or other contact ordered under paragraph (4)(d)

12  shall be:

13         (a)  Supervised by a person who has previously received

14  special training on the dynamics of children who have been

15  sexually abused; or

16         (b)  Shall be conducted in a supervised visitation

17  program, provided that the program has an agreement with the

18  court and a current affidavit of compliance on file with the

19  chief judge of the circuit in which the program is located,

20  affirming that the program has agreed to comply with the

21  minimum standards contained in an administrative order issued

22  by the Chief Justice of the Supreme Court on November 17,

23  1999, and provided the program has a written agreement with

24  the court and with the department as described in s. 753.05

25  containing policies and guidelines specifically related to

26  referrals involving child sexual abuse.

27         (6)  ADDITIONAL CONSIDERATIONS RELATED TO VISITATION OR

28  OTHER CONTACT.--

29         (a)  If a party or participant, based on communication

30  with the child or other first-hand knowledge, informs the

31  court that a person is attempting to influence the testimony

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 1  of the child, the court shall immediately suspend visitation

 2  or other contact. The court shall then hold a hearing and

 3  determine whether it is in the best interests of the child to

 4  prohibit or restrict visitation or other contact.

 5         (b)  If a child is in therapy as a result of any of the

 6  allegations or convictions contained in paragraph (3)(a), and

 7  the child's therapist reports that the visitation or other

 8  contact is impeding the child's therapeutic progress, the

 9  court shall convene a hearing within 7 business days to review

10  the terms, conditions, or appropriateness of continued

11  visitation or other contact.

12         Section 2.  Subsection (9) of section 39.402, Florida

13  Statutes, is amended to read:

14         39.402  Placement in a shelter.--

15         (9)  At any shelter hearing, the department shall

16  provide to the court a recommendation for scheduled contact

17  between the child and parents, if appropriate. The court shall

18  determine visitation rights absent a clear and convincing

19  showing that visitation is not in the best interest of the

20  child. Any order for visitation or other contact must conform

21  to the provisions of s. 39.0139. If visitation is ordered but

22  will not commence within 72 hours of the shelter hearing, the

23  department shall provide justification to the court.

24         Section 3.  Subsection (6) of section 39.506, Florida

25  Statutes, is amended to read:

26         39.506  Arraignment hearings.--

27         (6)  At any arraignment hearing, if the child is in an

28  out-of-home placement, the court shall order visitation rights

29  absent a clear and convincing showing that visitation is not

30  in the best interest of the child. Any order for visitation or

31  other contact must conform to the provisions of s. 39.0139.

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 1         Section 4.  Section 39.509, Florida Statutes, is

 2  amended to read:

 3         39.509  Grandparents rights.--Notwithstanding any other

 4  provision of law, a maternal or paternal grandparent as well

 5  as a stepgrandparent is entitled to reasonable visitation with

 6  his or her grandchild who has been adjudicated a dependent

 7  child and taken from the physical custody of the parent unless

 8  the court finds that such visitation is not in the best

 9  interest of the child or that such visitation would interfere

10  with the goals of the case plan. Reasonable visitation may be

11  unsupervised and, where appropriate and feasible, may be

12  frequent and continuing. Any order for visitation or other

13  contact must conform to the provisions of s. 39.0139.

14         (1)  Grandparent visitation may take place in the home

15  of the grandparent unless there is a compelling reason for

16  denying such a visitation. The department's caseworker shall

17  arrange the visitation to which a grandparent is entitled

18  pursuant to this section.  The state shall not charge a fee

19  for any costs associated with arranging the visitation.

20  However, the grandparent shall pay for the child's cost of

21  transportation when the visitation is to take place in the

22  grandparent's home.  The caseworker shall document the reasons

23  for any decision to restrict a grandparent's visitation.

24         (2)  A grandparent entitled to visitation pursuant to

25  this section shall not be restricted from appropriate displays

26  of affection to the child, such as appropriately hugging or

27  kissing his or her grandchild.  Gifts, cards, and letters from

28  the grandparent and other family members shall not be denied

29  to a child who has been adjudicated a dependent child.

30         (3)  Any attempt by a grandparent to facilitate a

31  meeting between the child who has been adjudicated a dependent

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 1  child and the child's parent or legal custodian, or any other

 2  person in violation of a court order shall automatically

 3  terminate future visitation rights of the grandparent.

 4         (4)  When the child has been returned to the physical

 5  custody of his or her parent, the visitation rights granted

 6  pursuant to this section shall terminate.

 7         (5)  The termination of parental rights does not affect

 8  the rights of grandparents unless the court finds that such

 9  visitation is not in the best interest of the child or that

10  such visitation would interfere with the goals of permanency

11  planning for the child.

12         (6)  In determining whether grandparental visitation is

13  not in the child's best interest, consideration may be given

14  to the finding of guilt, regardless of adjudication, or entry

15  or plea of guilty or nolo contendere to charges under the

16  following statutes, or similar statutes of other

17  jurisdictions: s. 787.04, relating to removing minors from the

18  state or concealing minors contrary to court order; s.

19  794.011, relating to sexual battery; s. 798.02, relating to

20  lewd and lascivious behavior; chapter 800, relating to

21  lewdness and indecent exposure; s. 826.04, relating to incest;

22  or chapter 827, relating to the abuse of children.

23  Consideration may be given to the designation by a court as a

24  sexual predator as defined in s. 775.21 or a substantially

25  similar designation under the laws of another jurisdiction.

26  Consideration may also be given to a report of abuse,

27  abandonment, or neglect under ss. 415.101-415.113 or this

28  chapter and the outcome of the investigation concerning such

29  report.

30         Section 5.  Paragraph (d) of subsection (3) of section

31  39.521, Florida Statutes, is amended to read:

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 1         39.521  Disposition hearings; powers of disposition.--

 2         (3)  When any child is adjudicated by a court to be

 3  dependent, the court shall determine the appropriate placement

 4  for the child as follows:

 5         (d)  If the child cannot be safely placed in a

 6  nonlicensed placement, the court shall commit the child to the

 7  temporary legal custody of the department. Such commitment

 8  invests in the department all rights and responsibilities of a

 9  legal custodian. The department shall not return any child to

10  the physical care and custody of the person from whom the

11  child was removed, except for court-approved visitation

12  periods, without the approval of the court. Any order for

13  visitation or other contact must conform to the provisions of

14  s. 39.0139. The term of such commitment continues until

15  terminated by the court or until the child reaches the age of

16  18. After the child is committed to the temporary legal

17  custody of the department, all further proceedings under this

18  section are governed by this chapter.

19  

20  Protective supervision continues until the court terminates it

21  or until the child reaches the age of 18, whichever date is

22  first. Protective supervision shall be terminated by the court

23  whenever the court determines that permanency has been

24  achieved for the child, whether with a parent, another

25  relative, or a legal custodian, and that protective

26  supervision is no longer needed. The termination of

27  supervision may be with or without retaining jurisdiction, at

28  the court's discretion, and shall in either case be considered

29  a permanency option for the child. The order terminating

30  supervision by the department shall set forth the powers of

31  the custodian of the child and shall include the powers

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 1  ordinarily granted to a guardian of the person of a minor

 2  unless otherwise specified. Upon the court's termination of

 3  supervision by the department, no further judicial reviews are

 4  required, so long as permanency has been established for the

 5  child.

 6         Section 6.  Section 753.01, Florida Statutes, is

 7  created to read:

 8         753.01  Definitions.--As used in this chapter, the

 9  term:

10         (1)  "Clearinghouse on Supervised Visitation" or

11  "clearinghouse" means the entity within the Institute for

12  Family Violence Studies in the School of Social Work of the

13  Florida State University which serves as a statewide resource

14  on supervised visitation issues by providing technical

15  assistance, training, and research.

16         (2)  "Exchange monitoring" means supervision of

17  movement of a child from the custodial to the noncustodial

18  parent at the start of a visit and back to the custodial

19  parent at the end of the visit.

20         (3)  "Supervised visitation program" means a program

21  created to offer structured contact between a parent or

22  caregiver and one or more children in the presence of a third

23  person responsible for observing and ensuring the safety of

24  those involved. Supervised visitation programs may also

25  include exchange monitoring of children who are participating

26  in court-ordered visitation programs or exchange monitoring

27  when there has been mutual consent between parties for the

28  purposes of facilitating a visitation.

29         Section 7.  Section 753.02, Florida Statutes, is

30  created to read:

31  

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 1         753.02  Clearinghouse on Supervised Visitation.--The

 2  clearinghouse has the following responsibilities, subject to

 3  the availability of resources:

 4         (1)  To develop standards for supervised visitation

 5  programs in order to ensure both the quality of each program

 6  and the safety of children and families utilizing program

 7  services.

 8         (2)  To serve as a clearinghouse on resources and

 9  research of supervised visitation programs.

10         (3)  To provide technical assistance and other support

11  services to existing and emerging supervised visitation

12  programs.

13         (4)  To compile a directory of state-supervised

14  visitation programs containing referral information.

15         (5)  To formulate a newsletter for supervised

16  visitation programs.

17         (6)  To organize workshops and conferences that address

18  issues and concerns of supervised visitation programs.

19         (7)  To have the authority to apply for grants and

20  accept private contributions.

21         (8)  To compile data on the use of supervised

22  visitation programs.

23         Section 8.  Section 753.03, Florida Statutes, is

24  created to read:

25         753.03  Standards for supervised visitation and

26  supervised exchange services.--

27         (1)  Within existing funds from the Department of

28  Children and Family Services, the clearinghouse shall develop

29  standards for supervised visitation programs in order to

30  ensure the safety and quality of each program. Standards must

31  be uniform for all the programs and must address the purpose,

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 1  policies, standards of practice, program content, security

 2  measures, qualifications of providers, training standards,

 3  credentials and background screening requirements of staff,

 4  information to be provided to the court, and data collection

 5  for supervised visitation programs.

 6         (2)  The clearinghouse shall use an advisory board to

 7  assist in developing the standards. The advisory board must

 8  include:

 9         (a)  Two members of the executive board of the state

10  chapter of the Supervised Visitation Network, appointed by the

11  president of the state chapter of the Supervised Visitation

12  Network.

13         (b)  A representative from the Office of the State

14  Courts Administrator, appointed by the State Courts

15  Administrator.

16         (c)  A representative from the department, appointed by

17  the Secretary of Children and Family Services.

18         (d)  A representative from the Florida Coalition

19  Against Domestic Violence, appointed by the executive director

20  of the Florida Coalition Against Domestic Violence.

21         (e)  A representative from a local law enforcement

22  agency, appointed by the executive director of the Florida

23  Sheriffs Association.

24         (f)  A circuit court judge who presides over domestic

25  violence proceedings, appointed by the Chief Justice of the

26  Supreme Court.

27         (g)  A circuit court judge who presides over dependency

28  proceedings, appointed by the Chief Justice of the Supreme

29  Court.

30         (h)  Two representatives from a supervised visitation

31  program, appointed by the director of the clearinghouse.

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 1         (i)  A representative from the Commission on Marriage

 2  and Family Support Initiatives.

 3         (j)  A representative of the Statewide Guardian ad

 4  Litem Office, appointed by the executive director.

 5         (3)  The clearinghouse, with consultation from the

 6  advisory board, shall develop criteria and procedures for

 7  approving and rejecting certification applications and

 8  monitoring compliance with the certification of a supervised

 9  visitation program. The clearinghouse shall recommend the

10  process for phasing in the implementation of the standards and

11  certification procedures, criteria for distributing funds to

12  eligible programs, and the state entity that should certify

13  and monitor the supervised visitation programs.

14         (4)  The clearinghouse shall submit a preliminary

15  report containing its recommendations for the uniform

16  standards by December 31, 2007, and a final report of all

17  recommendations, including those related to the certification

18  and monitoring developed to date by December 31, 2008, to the

19  President of the Senate, the Speaker of the House of

20  Representatives, and the Chief Justice of the Supreme Court.

21         Section 9.  Section 753.04, Florida Statutes, is

22  created to read:

23         753.04  Interim minimum standards for supervised

24  visitation programs.--

25         (1)  Until the standards for supervised visitation and

26  supervised exchange services are developed pursuant to this

27  chapter and a certification and monitoring process is fully

28  implemented, each supervised visitation program must have an

29  agreement with the court and comply with the "Minimum

30  Standards for Supervised Visitation Programs Agreement"

31  adopted by the Supreme Court on November 17, 1999. Under this

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 1  order, a supervised visitation program shall enter into an

 2  agreement with the circuit court or circuit courts within the

 3  geographic jurisdiction of the program attesting to the

 4  willingness of the program to comply with the Supreme Court's

 5  standards.

 6         (2)  Until the standards for supervised visitation and

 7  supervised exchange services are completed and a certification

 8  and monitoring process is fully implemented, a supervised

 9  visitation program may not receive grant funds for access and

10  visitation under 42 U.S.C. s. 669b unless the program provides

11  documentation to the state agency administering the grant

12  verifying that the program has entered into an agreement with

13  the circuit court as required under subsection (1). This

14  subsection does not obligate the state agency administering

15  the grant to certify a program's compliance with the Minimum

16  Standards for Supervised Visitation Programs Agreement.

17         Section 10.  Section 753.05, Florida Statutes, is

18  created to read:

19         753.05  Referrals involving child sexual abuse.--

20         (1)  Any supervised visitation program that wishes to

21  accept referrals involving child sexual abuse must have an

22  agreement with the court and a current affidavit of compliance

23  on file with the chief judge of the circuit in which the

24  program is located, affirming that the program has agreed to

25  comply with the minimum standards contained in an

26  administrative order issued by the Chief Justice of the

27  Supreme Court on November 17, 1999, and provided the program

28  has a written agreement with the court and with the department

29  that contains policies and guidelines specifically related to

30  child sexual abuse.

31  

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 1         (2)  The agreement must include provisions for the

 2  following:

 3         (a)  Program staff who supervise visits or other

 4  contact must have specific training in child sexual abuse

 5  provided through the Clearinghouse on Supervised Visitation

 6  documented in personnel files;

 7         (b)  The program must have protocols for obtaining

 8  background material on the family prior to the initiation of

 9  services;

10         (c)  The program must accept only those child sexual

11  abuse referrals in which staff have the requisite background

12  material, training, and security in place to safely monitor

13  contact;

14         (d)  The program must decline referrals of child sexual

15  abuse cases when staff lack necessary training and education,

16  when background material has not been received, or where lack

17  of security may allow revictimization of the child; and

18         (e)  The program must suspend visits in cases when the

19  child appears to be traumatized by the visit or the individual

20  visiting or having other contact engages in inappropriate

21  behavior or violates program rules.

22         Section 11.  Sections 753.001, 753.002, and 753.004,

23  Florida Statutes, are repealed.

24         Section 12.  This act shall take effect July 1, 2007.

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                              SB 20

 3                                 

 4  The committee substitute differs from the underlying bill in
    that it:
 5  
    --   Clarifies that the Clearinghouse on Supervised Visitation
 6       is to recommend supervised visitation standards to the
         Legislature;
 7  
    --   Does not contain provisions pertaining to volunteer law
 8       enforcement officers assisting with supervised visitation
         programs;
 9  
    --   Does not contain provisions that provided for a dedicated
10       funding source for supervised visitation programs; and

11  --   Provides for the limitation of visitation of a child by a
         parent, caregiver, or grandparent who has been reported
12       to the child abuse hotline or has been convicted of
         certain crimes involving minors.
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