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.