| 1 | A bill to be entitled |
| 2 | An act relating to sexual battery; amending s. 39.806, |
| 3 | F.S.; providing grounds for terminating parental rights |
| 4 | based on sexual battery; conforming a cross-reference; |
| 5 | amending ss. 39.402, 39.521, and 39.811, F.S.; conforming |
| 6 | cross-references; amending s. 775.089, F.S.; authorizing |
| 7 | restitution to the victim of sexual battery or lewd or |
| 8 | lascivious battery to pay for the expenses of the child; |
| 9 | providing an exception; providing requirements is such |
| 10 | restitution is ordered; providing an effective date. |
| 11 |
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| 12 | Be It Enacted by the Legislature of the State of Florida: |
| 13 |
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| 14 | Section 1. Paragraph (j) is added to subsection (1) of |
| 15 | section 39.806, Florida Statutes, and subsection (2) of that |
| 16 | section is amended, to read: |
| 17 | 39.806 Grounds for termination of parental rights.-- |
| 18 | (1) Grounds for the termination of parental rights may be |
| 19 | established under any of the following circumstances: |
| 20 | (j) When the parent has pled guilty or nolo contendere to, |
| 21 | or is convicted of, a sexual battery as defined in s. 794.011, |
| 22 | or a lewd or lascivious battery as defined in s. 800.04(4), |
| 23 | which results in the victim giving birth to a child. |
| 24 | (2) Reasonable efforts to preserve and reunify families |
| 25 | are not required if a court of competent jurisdiction has |
| 26 | determined that any of the events described in paragraphs |
| 27 | (1)(e)-(j)(e)-(i) have occurred. |
| 28 | Section 2. Paragraph (h) of subsection (8) of section |
| 29 | 39.402, Florida Statutes, is amended to read: |
| 30 | 39.402 Placement in a shelter.-- |
| 31 | (8) |
| 32 | (h) The order for placement of a child in shelter care |
| 33 | must identify the parties present at the hearing and must |
| 34 | contain written findings: |
| 35 | 1. That placement in shelter care is necessary based on |
| 36 | the criteria in subsections (1) and (2). |
| 37 | 2. That placement in shelter care is in the best interest |
| 38 | of the child. |
| 39 | 3. That continuation of the child in the home is contrary |
| 40 | to the welfare of the child because the home situation presents |
| 41 | a substantial and immediate danger to the child's physical, |
| 42 | mental, or emotional health or safety which cannot be mitigated |
| 43 | by the provision of preventive services. |
| 44 | 4. That based upon the allegations of the petition for |
| 45 | placement in shelter care, there is probable cause to believe |
| 46 | that the child is dependent or that the court needs additional |
| 47 | time, which may not exceed 72 hours, in which to obtain and |
| 48 | review documents pertaining to the family in order to |
| 49 | appropriately determine the risk to the child. |
| 50 | 5. That the department has made reasonable efforts to |
| 51 | prevent or eliminate the need for removal of the child from the |
| 52 | home. A finding of reasonable effort by the department to |
| 53 | prevent or eliminate the need for removal may be made and the |
| 54 | department is deemed to have made reasonable efforts to prevent |
| 55 | or eliminate the need for removal if: |
| 56 | a. The first contact of the department with the family |
| 57 | occurs during an emergency; |
| 58 | b. The appraisal of the home situation by the department |
| 59 | indicates that the home situation presents a substantial and |
| 60 | immediate danger to the child's physical, mental, or emotional |
| 61 | health or safety which cannot be mitigated by the provision of |
| 62 | preventive services; |
| 63 | c. The child cannot safely remain at home, either because |
| 64 | there are no preventive services that can ensure the health and |
| 65 | safety of the child or because, even with appropriate and |
| 66 | available services being provided, the health and safety of the |
| 67 | child cannot be ensured; or |
| 68 | d. The parent or legal custodian is alleged to have |
| 69 | committed any of the acts listed as grounds for expedited |
| 70 | termination of parental rights in s. 39.806(1)(f)-(j)(f)-(i). |
| 71 | 6. That the court notified the parents or legal custodians |
| 72 | of the time, date, and location of the next dependency hearing |
| 73 | and of the importance of the active participation of the parents |
| 74 | or legal custodians in all proceedings and hearings. |
| 75 | 7. That the court notified the parents or legal custodians |
| 76 | of their right to counsel to represent them at the shelter |
| 77 | hearing and at each subsequent hearing or proceeding, and the |
| 78 | right of the parents to appointed counsel, pursuant to the |
| 79 | procedures set forth in s. 39.013. |
| 80 | Section 3. Paragraph (f) of subsection (1) of section |
| 81 | 39.521, Florida Statutes, is amended to read: |
| 82 | 39.521 Disposition hearings; powers of disposition.-- |
| 83 | (1) A disposition hearing shall be conducted by the court, |
| 84 | if the court finds that the facts alleged in the petition for |
| 85 | dependency were proven in the adjudicatory hearing, or if the |
| 86 | parents or legal custodians have consented to the finding of |
| 87 | dependency or admitted the allegations in the petition, have |
| 88 | failed to appear for the arraignment hearing after proper |
| 89 | notice, or have not been located despite a diligent search |
| 90 | having been conducted. |
| 91 | (f) If the court places the child in an out-of-home |
| 92 | placement, the disposition order must include a written |
| 93 | determination that the child cannot safely remain at home with |
| 94 | reunification or family preservation services and that removal |
| 95 | of the child is necessary to protect the child. If the child has |
| 96 | been removed before the disposition hearing, the order must also |
| 97 | include a written determination as to whether, after removal, |
| 98 | the department has made a reasonable effort to reunify the |
| 99 | parent and child, if reasonable efforts are required. Reasonable |
| 100 | efforts to reunify are not required if the court has found that |
| 101 | any of the acts listed in s. 39.806(1)(f)-(j)(f)-(i) have |
| 102 | occurred. The department has the burden of demonstrating that it |
| 103 | has made reasonable efforts under this paragraph. |
| 104 | 1. For the purposes of this paragraph, the term |
| 105 | "reasonable effort" means the exercise of reasonable diligence |
| 106 | and care by the department to provide the services ordered by |
| 107 | the court or delineated in the case plan. |
| 108 | 2. In support of its determination as to whether |
| 109 | reasonable efforts have been made, the court shall: |
| 110 | a. Enter written findings as to whether or not prevention |
| 111 | or reunification efforts were indicated. |
| 112 | b. If prevention or reunification efforts were indicated, |
| 113 | include a brief written description of what appropriate and |
| 114 | available prevention and reunification efforts were made. |
| 115 | c. Indicate in writing why further efforts could or could |
| 116 | not have prevented or shortened the separation of the parent and |
| 117 | child. |
| 118 | 3. A court may find that the department has made a |
| 119 | reasonable effort to prevent or eliminate the need for removal |
| 120 | if: |
| 121 | a. The first contact of the department with the family |
| 122 | occurs during an emergency; |
| 123 | b. The appraisal by the department of the home situation |
| 124 | indicates that it presents a substantial and immediate danger to |
| 125 | the child's safety or physical, mental, or emotional health |
| 126 | which cannot be mitigated by the provision of preventive |
| 127 | services; |
| 128 | c. The child cannot safely remain at home, either because |
| 129 | there are no preventive services that can ensure the health and |
| 130 | safety of the child or, even with appropriate and available |
| 131 | services being provided, the health and safety of the child |
| 132 | cannot be ensured; or |
| 133 | d. The parent is alleged to have committed any of the acts |
| 134 | listed as grounds for expedited termination of parental rights |
| 135 | in s. 39.806(1)(f)-(j)(f)-(i). |
| 136 | 4. A reasonable effort by the department for reunification |
| 137 | of the parent and child has been made if the appraisal of the |
| 138 | home situation by the department indicates that the severity of |
| 139 | the conditions of dependency is such that reunification efforts |
| 140 | are inappropriate. The department has the burden of |
| 141 | demonstrating to the court that reunification efforts were |
| 142 | inappropriate. |
| 143 | 5. If the court finds that the prevention or reunification |
| 144 | effort of the department would not have permitted the child to |
| 145 | remain safely at home, the court may commit the child to the |
| 146 | temporary legal custody of the department or take any other |
| 147 | action authorized by this chapter. |
| 148 | Section 4. Paragraph (e) of subsection (6) of section |
| 149 | 39.811, Florida Statutes, is amended to read: |
| 150 | 39.811 Powers of disposition; order of disposition.-- |
| 151 | (6) The parental rights of one parent may be severed |
| 152 | without severing the parental rights of the other parent only |
| 153 | under the following circumstances: |
| 154 | (e) If the parent whose rights are being terminated meets |
| 155 | any of the criteria specified in s. 39.806(1)(d) and (f)-(j)(f)- |
| 156 | (i). |
| 157 | Section 5. Subsection (1) of section 775.089, Florida |
| 158 | Statutes, is amended to read: |
| 159 | 775.089 Restitution.-- |
| 160 | (1)(a) In addition to any punishment, the court shall |
| 161 | order the defendant to make restitution to the victim for: |
| 162 | 1. Damage or loss caused directly or indirectly by the |
| 163 | defendant's offense; and |
| 164 | 2. Damage or loss related to the defendant's criminal |
| 165 | episode, |
| 166 |
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| 167 | unless it finds clear and compelling reasons not to order such |
| 168 | restitution. Restitution may be monetary or nonmonetary |
| 169 | restitution. The court shall make the payment of restitution a |
| 170 | condition of probation in accordance with s. 948.03. An order |
| 171 | requiring the defendant to make restitution to a victim does not |
| 172 | remove or diminish the requirement that the court order payment |
| 173 | to the Crimes Compensation Trust Fund pursuant to chapter 960. |
| 174 | Payment of an award by the Crimes Compensation Trust Fund shall |
| 175 | create an order of restitution to the Crimes Compensation Trust |
| 176 | Fund, unless specifically waived in accordance with subparagraph |
| 177 | (b)1. |
| 178 | (b)1. If the court does not order restitution, or orders |
| 179 | restitution of only a portion of the damages, as provided in |
| 180 | this section, it shall state on the record in detail the reasons |
| 181 | therefor. |
| 182 | 2. An order of restitution entered as part of a plea |
| 183 | agreement is as definitive and binding as any other order of |
| 184 | restitution, and a statement to such effect must be made part of |
| 185 | the plea agreement. A plea agreement may contain provisions that |
| 186 | order restitution relating to criminal offenses committed by the |
| 187 | defendant to which the defendant did not specifically enter a |
| 188 | plea. |
| 189 | (c) The term "victim" as used in this section and in any |
| 190 | provision of law relating to restitution means each person who |
| 191 | suffers property damage or loss, monetary expense, or physical |
| 192 | injury or death as a direct or indirect result of the |
| 193 | defendant's offense or criminal episode, and also includes the |
| 194 | victim's estate if the victim is deceased, and the victim's next |
| 195 | of kin if the victim is deceased as a result of the offense. |
| 196 | (d) If a child is born as the result of a sexual battery |
| 197 | as proscribed in s. 794.011, or a lewd or lascivious battery as |
| 198 | proscribed in s. 800.04(4), the court may order the defendant to |
| 199 | pay restitution to the victim for the monetary expenses related |
| 200 | to the support of the child, unless the parental rights of the |
| 201 | victim have been terminated pursuant to chapter 39. This |
| 202 | paragraph does not preclude the court from ordering any other |
| 203 | restitution to which the victim of a sexual battery or lewd or |
| 204 | lascivious battery may be entitled pursuant to this section, |
| 205 | regardless of whether or not a child is born. If restitution is |
| 206 | ordered: |
| 207 | 1. The court shall give consideration to the child support |
| 208 | guideline schedules provided in s. 61.30 when determining the |
| 209 | amount of restitution. |
| 210 | 2. The amount may not be reduced due to the offender's |
| 211 | inability to pay. |
| 212 | Section 6. This act shall take effect July 1, 2008. |