Florida Senate - 2015 CS for CS for SB 496
By the Committees on Judiciary; and Children, Families, and
Elder Affairs; and Senator Detert
590-02146-15 2015496c2
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 young adult reaches a certain age
7 under 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 guardianship court has jurisdiction
22 over proceedings for appointment of a guardian
23 advocate if petitions are filed for certain minors who
24 are subject to ch. 39, F.S., proceedings if such
25 minors have attained a specified age; providing that
26 such minor has the same due process rights as certain
27 adults; providing requirements for when an order
28 appointing a guardian advocate must be issued;
29 providing that proceedings seeking appointment of a
30 guardian advocate for certain minors be conducted in
31 separate proceedings; amending s. 744.301, F.S.;
32 providing that if a child is subject to proceedings
33 under ch. 39, F.S., the parents may act as natural
34 guardians unless the dependency or probate court finds
35 that it is not in the child’s best interests or their
36 parental rights have been terminated; amending s.
37 744.3021, F.S.; requiring the guardianship court to
38 initiate proceedings for appointment of guardians for
39 certain minors who are subject to ch. 39, F.S.,
40 proceedings if petitions are filed and if such minors
41 have reached a specified age; providing that such
42 minor has the same due process rights as certain
43 adults; providing requirements for when an order of
44 adjudication and letters of limited or plenary
45 guardianship must be issued; providing that
46 proceedings seeking appointment of a guardian advocate
47 for certain minors be conducted in separate
48 proceedings; providing an effective date.
49
50 Be It Enacted by the Legislature of the State of Florida:
51
52 Section 1. Subsection (8) of section 39.6251, Florida
53 Statutes, is amended to read:
54 39.6251 Continuing care for young adults.—
55 (8) During the time that a young adult is in care, the
56 court shall maintain jurisdiction to ensure that the department
57 and the lead agencies are providing services and coordinate
58 with, and maintain oversight of, other agencies involved in
59 implementing the young adult’s case plan, individual education
60 plan, and transition plan. The court shall review the status of
61 the young adult at least every 6 months and hold a permanency
62 review hearing at least annually. If the young adult has been
63 appointed a guardian under chapter 744 or a guardian advocate
64 under s. 393.12, the court shall review at the permanency review
65 hearing the necessity of continuing the guardianship and whether
66 restoration of guardianship proceedings are needed when the
67 young adult reaches 22 years of age. The court may appoint a
68 guardian ad litem or continue the appointment of a guardian ad
69 litem with the young adult’s consent. The young adult or any
70 other party to the dependency case may request an additional
71 hearing or review.
72 Section 2. Paragraphs (b) and (c) of subsection (3) of
73 section 39.701, Florida Statutes, are amended to read:
74 39.701 Judicial review.—
75 (3) REVIEW HEARINGS FOR CHILDREN 17 YEARS OF AGE.—
76 (b) At the first judicial review hearing held subsequent to
77 the child’s 17th birthday, the department shall provide the
78 court with an updated case plan that includes specific
79 information related to the independent living skills that the
80 child has acquired since the child’s 13th birthday, or since the
81 date the child came into foster care, whichever came later.
82 1. For any child that may meet the requirements for
83 appointment of a guardian pursuant to chapter 744 or a guardian
84 advocate pursuant to s. 393.12, the updated case plan must be
85 developed in a face-to-face conference with the child, if
86 appropriate; the child’s attorney; any court-appointed guardian
87 ad litem; the temporary custodian of the child; and the parent,
88 if the parent’s rights have not been terminated.
89 2. At the judicial review hearing, if the court determines
90 pursuant to the requirements of chapter 744 that there is a good
91 faith basis to believe that the child qualifies for appointment
92 of a guardian advocate, limited guardian, or plenary guardian
93 and that no less restrictive decisionmaking assistance will meet
94 the child’s needs:
95 a. The department shall complete a multidisciplinary report
96 which must include, but is not limited to, a psychosocial
97 evaluation and educational report if such a report has not been
98 completed within the previous 2 years.
99 b. The department shall identify one or more individuals
100 who are willing to serve as the guardian advocate pursuant to s.
101 393.12 or as the plenary or limited guardian pursuant to chapter
102 744. Any other interested parties or participants may make
103 efforts to identify such a guardian advocate, limited guardian,
104 or plenary guardian. A child’s biological or adoptive family
105 member, including the child’s parent if the parent’s rights have
106 not been terminated, may not be considered for service as the
107 plenary or limited guardian unless the court enters a written
108 order finding that such an appointment is in the child’s best
109 interests.
110 c. Proceedings may be initiated within 6 months after the
111 child’s 17th birthday for the appointment of a guardian
112 advocate, plenary guardian, or limited guardian for the child in
113 a separate proceeding in the division of the court with proper
114 jurisdiction over guardianship matters and pursuant to chapter
115 744. The Legislature encourages the use of pro bono
116 representation to initiate proceedings under this section.
117 3. In the event another interested party or participant
118 initiates proceedings for the appointment of a guardian
119 advocate, plenary guardian, or limited guardian for the child,
120 the department shall provide all necessary documentation and
121 information to the petitioner to complete a petition under
122 chapter 393 or chapter 744 within 45 days after the first
123 judicial review hearing after the child’s 17th birthday.
124 4. Any proceedings seeking appointment of a guardian
125 advocate or a determination of incapacity and the appointment of
126 a guardian must be conducted in a separate proceeding in the
127 division of the court with jurisdiction over guardianship
128 matters and pursuant to chapter 744.
129 (c) If the court finds at the judicial review hearing that
130 the department has not met its obligations to the child as
131 stated in this part, in the written case plan, or in the
132 provision of independent living services, the court may issue an
133 order directing the department to show cause as to why it has
134 not done so. If the department cannot justify its noncompliance,
135 the court may give the department 30 days within which to
136 comply. If the department fails to comply within 30 days, the
137 court may hold the department in contempt.
138 Section 3. Paragraph (c) is added to subsection (2) of
139 section 393.12, Florida Statutes, to read:
140 393.12 Capacity; appointment of guardian advocate.—
141 (2) APPOINTMENT OF A GUARDIAN ADVOCATE.—
142 (c) If a petition is filed pursuant to this section
143 requesting appointment of a guardian advocate for a minor who is
144 the subject of any proceeding under chapter 39, the division of
145 the court with jurisdiction over guardianship matters has
146 jurisdiction over the proceedings pursuant to this section when
147 the minor reaches the age of 17 years and 6 months or anytime
148 thereafter. The minor shall be provided all the due process
149 rights conferred upon an alleged developmentally disabled adult
150 pursuant to this chapter. The order of appointment of a guardian
151 advocate under this section shall issue upon the minor’s 18th
152 birthday or as soon thereafter as possible. Any proceeding
153 pursuant to this paragraph shall be conducted separately from
154 any other proceeding.
155 Section 4. Subsection (1) of section 744.301, Florida
156 Statutes, is amended to read:
157 744.301 Natural guardians.—
158 (1) The parents jointly are the natural guardians of their
159 own children and of their adopted children, during minority,
160 unless the parents’ parental rights have been terminated
161 pursuant to chapter 39. If a child is the subject of any
162 proceeding under chapter 39, the parents may act as natural
163 guardians under this section unless the dependency or probate
164 court finds that it is not in the child’s best interests. If one
165 parent dies, the surviving parent remains the sole natural
166 guardian even if he or she remarries. If the marriage between
167 the parents is dissolved, the natural guardianship belongs to
168 the parent to whom sole parental responsibility has been
169 granted, or if the parents have been granted shared parental
170 responsibility, both continue as natural guardians. If the
171 marriage is dissolved and neither parent is given parental
172 responsibility for the child, neither may act as natural
173 guardian of the child. The mother of a child born out of wedlock
174 is the natural guardian of the child and is entitled to primary
175 residential care and custody of the child unless the court
176 enters an order stating otherwise.
177 Section 5. Subsection (1) of section 744.3021, Florida
178 Statutes, is amended, and subsection (4) is added to that
179 section, to read:
180 744.3021 Guardians of minors.—
181 (1) Except as provided in subsection (4), upon petition of
182 a parent, brother, sister, next of kin, or other person
183 interested in the welfare of a minor, a guardian for a minor may
184 be appointed by the court without the necessity of adjudication
185 pursuant to s. 744.331. A guardian appointed for a minor,
186 whether of the person or property, has the authority of a
187 plenary guardian.
188 (4) If a petition is filed pursuant to this section
189 requesting appointment of a guardian for a minor who is the
190 subject of any proceeding under chapter 39 and who is aged 17
191 years and 6 months or older, the division of the court with
192 jurisdiction over guardianship matters has jurisdiction over the
193 proceedings under s. 744.331. The alleged incapacitated minor
194 under this subsection shall be provided all the due process
195 rights conferred upon an alleged incapacitated adult pursuant to
196 this chapter and applicable court rules. The order of
197 adjudication under s. 744.331 and the letters of limited or
198 plenary guardianship may issue upon the minor’s 18th birthday or
199 as soon thereafter as possible. Any proceeding pursuant to this
200 subsection shall be conducted separately from any other
201 proceeding.
202 Section 6. This act shall take effect July 1, 2015.