Florida Senate - 2015                              CS for SB 496
       
       
        
       By the Committee on Children, Families, and Elder Affairs; and
       Senator Detert
       
       
       
       
       586-01712-15                                           2015496c1
    1                        A bill to be entitled                      
    2         An act relating to guardians; amending s. 39.6251,
    3         F.S.; requiring the court at the permanency review
    4         hearing to review the necessity of the guardianship
    5         and whether restoration of guardianship proceedings
    6         are needed when the child reaches a certain age under
    7         certain circumstances; amending s. 39.701, F.S.;
    8         requiring that, for a child meeting certain
    9         requirements, the updated case plan be developed in a
   10         face-to-face conference with specified persons
   11         present; requiring the Department of Children and
   12         Families to take specified actions at the judicial
   13         review hearing if the court makes certain
   14         determinations; requiring the department to provide
   15         documentation and information to a petitioner under
   16         certain circumstances; requiring certain proceedings
   17         to be conducted separately; expanding the
   18         circumstances under which a court, after making
   19         certain findings, may issue an order directing the
   20         department to show cause; amending s. 393.12, F.S.;
   21         providing that the court with proper jurisdiction over
   22         probate matters has jurisdiction if a specified
   23         petition is filed; requiring the provision of due
   24         process rights for a minor; requiring the issuance of
   25         the order of appointment of guardian advocate upon the
   26         minor turning 18 years of age or as soon thereafter as
   27         possible; amending s. 744.301, F.S.; providing that
   28         parents are the joint natural guardians of their
   29         children unless their parental rights have been
   30         terminated; authorizing the parents to act as natural
   31         guardians of their child under certain circumstances;
   32         providing an exception; amending s. 744.3021, F.S.;
   33         providing an exception to the appointment of guardians
   34         for a minor; specifying that the court with proper
   35         jurisdiction over probate matters has jurisdiction
   36         over certain proceedings if a specified petition is
   37         filed; requiring the provision of due process rights
   38         for an alleged incapacitated minor; providing an
   39         effective date.
   40          
   41  Be It Enacted by the Legislature of the State of Florida:
   42  
   43         Section 1. Subsection (8) of section 39.6251, Florida
   44  Statutes, is amended to read:
   45         39.6251 Continuing care for young adults.—
   46         (8) During the time that a young adult is in care, the
   47  court shall maintain jurisdiction to ensure that the department
   48  and the lead agencies are providing services and coordinate
   49  with, and maintain oversight of, other agencies involved in
   50  implementing the young adult’s case plan, individual education
   51  plan, and transition plan. The court shall review the status of
   52  the young adult at least every 6 months and hold a permanency
   53  review hearing at least annually. If the young adult has been
   54  appointed a guardian under chapter 744 or a guardian advocate
   55  under s. 393.12, the court shall review at the permanency review
   56  hearing the necessity of continuing the guardianship and whether
   57  restoration of guardianship proceedings are needed when the
   58  child reaches 22 years of age. The court may appoint a guardian
   59  ad litem or continue the appointment of a guardian ad litem with
   60  the young adult’s consent. The young adult or any other party to
   61  the dependency case may request an additional hearing or review.
   62         Section 2. Paragraphs (b) and (c) of subsection (3) of
   63  section 39.701, Florida Statutes, are amended to read:
   64         39.701 Judicial review.—
   65         (3) REVIEW HEARINGS FOR CHILDREN 17 YEARS OF AGE.—
   66         (b) At the first judicial review hearing held subsequent to
   67  the child’s 17th birthday, the department shall provide the
   68  court with an updated case plan that includes specific
   69  information related to the independent living skills that the
   70  child has acquired since the child’s 13th birthday, or since the
   71  date the child came into foster care, whichever came later.
   72         1. For any child that may meet the requirements for
   73  appointment of a guardian pursuant to chapter 744 or a guardian
   74  advocate pursuant to s. 393.12, the updated case plan must be
   75  developed in a face-to-face conference with the child, if
   76  appropriate; the child’s attorney; any court-appointed guardian
   77  ad litem; the temporary custodian of the child; and the parent,
   78  if the parent’s rights have not been terminated.
   79         2.At the judicial review hearing, if the court determines
   80  pursuant to the procedures and requirements of chapter 744 and
   81  the Florida Probate Rules that there is a good faith basis to
   82  believe the child qualifies for appointment of a guardian or a
   83  guardian advocate and that no less restrictive decisionmaking
   84  assistance will meet the child’s needs:
   85         a. The department shall complete a multidisciplinary report
   86  that must include, but is not limited to, a psychosocial
   87  evaluation and educational report if such a report has not been
   88  completed within the previous 2 years.
   89         b.The department shall identify one or more individuals
   90  who are willing to serve as the guardian advocate pursuant to s.
   91  393.12 or as the plenary guardian or limited guardian pursuant
   92  to chapter 744 and the Florida Probate Rules. Any other
   93  interested parties or participants may make efforts to identify
   94  such a guardian advocate or plenary guardian or limited
   95  guardian. A child’s biological or adoptive family members,
   96  including a child’s parents if the parents’ rights have not been
   97  terminated, may not be considered for service as the plenary
   98  guardian or limited guardian unless the court enters a written
   99  order finding that such an appointment is in the child’s best
  100  interests.
  101         c.Proceedings shall be initiated within 180 days after the
  102  child’s 17th birthday for the appointment of a guardian advocate
  103  or plenary guardian or limited guardian for the child in the
  104  court with proper jurisdiction over probate matters according to
  105  the local rules of judicial administration and the procedures
  106  and requirements of chapter 744 and the Florida Probate Rules.
  107         3.In the event another interested party or participant
  108  initiates proceedings for the appointment of a guardian advocate
  109  or plenary guardian or limited guardian for the child, the
  110  department shall provide all necessary documentation and
  111  information to the petitioner to complete a petition under
  112  chapter 393 or chapter 744 within 45 days after the first
  113  judicial review hearing after the child’s 17th birthday.
  114         4.Any proceedings for appointment of a guardian advocate
  115  or a determination of incapacity and the appointment of a
  116  guardian must be conducted in a separate proceeding in the court
  117  with proper jurisdiction over probate matters according to local
  118  rules of judicial administration and the procedures and
  119  requirements of chapter 744 and the Florida Probate Rules.
  120         (c) If the court finds at the judicial review hearing that
  121  the department has not met its obligations to the child as
  122  stated in this part, in the written case plan, or in the
  123  provision of independent living services, the court may issue an
  124  order directing the department to show cause as to why it has
  125  not done so. If the department cannot justify its noncompliance,
  126  the court may give the department 30 days within which to
  127  comply. If the department fails to comply within 30 days, the
  128  court may hold the department in contempt.
  129         Section 3. Paragraph (c) is added to subsection (2) of
  130  section 393.12, Florida Statutes, to read:
  131         393.12 Capacity; appointment of guardian advocate.—
  132         (2) APPOINTMENT OF A GUARDIAN ADVOCATE.—
  133         (c) If a petition is filed pursuant to this section
  134  requesting appointment of a guardian advocate for a minor who is
  135  the subject of any proceeding under chapter 39, the court with
  136  proper jurisdiction over probate matters according to local
  137  rules of judicial administration and the Florida Probate Rules
  138  shall have jurisdiction over the proceedings pursuant to this
  139  section when the minor reaches the age of 17 years and 6 months
  140  or anytime thereafter. The minor shall be provided all the due
  141  process rights conferred upon an alleged developmentally
  142  disabled adult pursuant to this chapter. The order of
  143  appointment of guardian advocate under this section shall be
  144  issued upon the minor’s 18th birthday or as soon thereafter as
  145  possible.
  146         Section 4. Subsection (1) of section 744.301, Florida
  147  Statutes, is amended to read:
  148         744.301 Natural guardians.—
  149         (1) The parents jointly are the natural guardians of their
  150  own children and of their adopted children, during minority,
  151  unless the parent’s parental rights have been terminated
  152  pursuant to chapter 39. If a child is the subject of any
  153  proceeding under chapter 39, the parents may act as natural
  154  guardians under this section unless the dependency or probate
  155  court finds that it is not in the child’s best interest. If one
  156  parent dies, the surviving parent remains the sole natural
  157  guardian even if he or she remarries. If the marriage between
  158  the parents is dissolved, the natural guardianship belongs to
  159  the parent to whom sole parental responsibility has been
  160  granted, or if the parents have been granted shared parental
  161  responsibility, both continue as natural guardians. If the
  162  marriage is dissolved and neither parent is given parental
  163  responsibility for the child, neither may act as natural
  164  guardian of the child. The mother of a child born out of wedlock
  165  is the natural guardian of the child and is entitled to primary
  166  residential care and custody of the child unless the court
  167  enters an order stating otherwise.
  168         Section 5. Subsection (1) of section 744.3021, Florida
  169  Statutes, is amended, and subsection (4) is added to that
  170  section, to read:
  171         744.3021 Guardians of minors.—
  172         (1) Except as provided in subsection (4), upon petition of
  173  a parent, brother, sister, next of kin, or other person
  174  interested in the welfare of a minor, a guardian for a minor may
  175  be appointed by the court without the necessity of adjudication
  176  pursuant to s. 744.331. A guardian appointed for a minor,
  177  whether of the person or property, has the authority of a
  178  plenary guardian.
  179         (4)If a petition is filed pursuant to this section
  180  requesting appointment of a guardian for a minor that is the
  181  subject of any proceeding under chapter 39 and who is 17 years
  182  and 6 months of age or older, the court with proper jurisdiction
  183  over probate matters according to local rules of judicial
  184  administration and the procedures and requirements of this
  185  chapter and the Florida Probate Rules shall have jurisdiction
  186  over the proceedings under s. 744.331. The alleged incapacitated
  187  minor under this subsection shall be provided all the due
  188  process rights conferred upon an alleged incapacitated adult
  189  pursuant to this chapter and the Florida Probate Rules. The
  190  order of adjudication under s. 744.331 and the letters of
  191  limited guardianship or plenary guardianship may be issued upon
  192  the minor’s 18th birthday or as soon thereafter as possible.
  193         Section 6. This act shall take effect July 1, 2015.