Florida Senate - 2021                        COMMITTEE AMENDMENT
       Bill No. SB 1920
       
       
       
       
       
       
                                Ì134864>Î134864                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/23/2021           .                                
                                       .                                
                                       .                                
                                       .                                
       —————————————————————————————————————————————————————————————————




       —————————————————————————————————————————————————————————————————
       The Committee on Children, Families, and Elder Affairs (Book)
       recommended the following:
       
    1         Senate Amendment to Amendment (163466) (with title
    2  amendment)
    3  
    4         Delete lines 93 - 444
    5  and insert:
    6         (b) On or after July 1, 2022, a guardian ad litem:
    7         1. Must be appointed by the court at the earliest possible
    8  time to represent a child under the following circumstances:
    9         a.The child is younger than 10 years of age and is the
   10  subject of a dependency proceeding under this chapter or a
   11  related adoption proceeding;
   12         b. The child is the subject of a dependency proceeding
   13  under this chapter or a related adoption proceeding and the
   14  subject of a criminal proceeding;
   15         c. The child is the subject of a termination of parental
   16  rights proceeding under part X; or
   17         d. The child is a dependent child as described in s.
   18  39.01305(3).
   19         2. May be appointed at the court’s discretion upon a
   20  finding that circumstances exist which require the appointment.
   21         (2) On or after July 1, 2022, the court shall discharge the
   22  guardian ad litem program, if appointed, within 60 days after
   23  such child reaches 10 years of age unless:
   24         (a)The child meets a criterion specified in sub
   25  subparagraph (1)(b)1.b., c., or d., or (1)(b)2. and the court
   26  orders the guardian ad litem to remain on the case; or
   27         (b) The child expresses that he or she wishes to remain
   28  with the guardian ad litem and the court determines that the
   29  expression is voluntary and knowing.
   30         (3)Upon request by a child who is subject to a dependency
   31  proceeding under this chapter or a related adoption proceeding,
   32  who is 10 years of age or older, and who has a guardian ad litem
   33  assigned, or upon any party presenting evidence that there is
   34  reasonable cause to suspect the assigned guardian ad litem has a
   35  conflict of interest as defined in s. 39.8296(2)(b)9., the court
   36  may:
   37         (a) Order that a new guardian ad litem be assigned; or
   38         (b) Unless otherwise provided by law, discharge the child’s
   39  current guardian ad litem and appoint an attorney for the child
   40  if one is not appointed.
   41         (4) Any person participating in a civil or criminal
   42  judicial proceeding resulting from such appointment shall be
   43  presumed prima facie to be acting in good faith and in so doing
   44  shall be immune from any liability, civil or criminal, that
   45  otherwise might be incurred or imposed.
   46         (5)(2) In those cases in which the parents are financially
   47  able, the parent or parents of the child shall reimburse the
   48  court, in part or in whole, for the cost of provision of
   49  guardian ad litem services. Reimbursement to the individual
   50  providing guardian ad litem services may shall not be contingent
   51  upon successful collection by the court from the parent or
   52  parents.
   53         (6)(3) Upon presentation by a guardian ad litem of a court
   54  order appointing the guardian ad litem:
   55         (a) An agency, as defined in chapter 119, shall allow the
   56  guardian ad litem to inspect and copy records related to the
   57  best interests of the child who is the subject of the
   58  appointment, including, but not limited to, records made
   59  confidential or exempt from s. 119.07(1) or s. 24(a), Art. I of
   60  the State Constitution. The guardian ad litem shall maintain the
   61  confidential or exempt status of any records shared by an agency
   62  under this paragraph.
   63         (b) A person or organization, other than an agency under
   64  paragraph (a), shall allow the guardian ad litem to inspect and
   65  copy any records related to the best interests of the child who
   66  is the subject of the appointment, including, but not limited
   67  to, confidential records.
   68  
   69  For the purposes of this subsection, the term “records related
   70  to the best interests of the child” includes, but is not limited
   71  to, medical, mental health, substance abuse, child care,
   72  education, law enforcement, court, social services, and
   73  financial records.
   74         (7)(4) The guardian ad litem or the program representative
   75  shall review all disposition recommendations and changes in
   76  placements, and must be present at all critical stages of the
   77  dependency proceeding or submit a written report of
   78  recommendations to the court. Written reports must be filed with
   79  the court and served on all parties whose whereabouts are known
   80  at least 72 hours before prior to the hearing.
   81         Section 6. Subsection (2) of section 39.8296, Florida
   82  Statutes, is amended to read:
   83         39.8296 Statewide Guardian Ad Litem Office; legislative
   84  findings and intent; creation; appointment of executive
   85  director; duties of office.—
   86         (2) STATEWIDE GUARDIAN AD LITEM OFFICE.—There is created a
   87  Statewide Guardian Ad Litem Office within the Justice
   88  Administrative Commission. The Justice Administrative Commission
   89  shall provide administrative support and service to the office
   90  to the extent requested by the executive director within the
   91  available resources of the commission. The Statewide Guardian Ad
   92  Litem Office is not subject to control, supervision, or
   93  direction by the Justice Administrative Commission in the
   94  performance of its duties, but the employees of the office are
   95  governed by the classification plan and salary and benefits plan
   96  approved by the Justice Administrative Commission.
   97         (a) The head of the Statewide Guardian Ad Litem Office is
   98  the executive director, who shall be appointed by the Governor
   99  from a list of a minimum of three eligible applicants submitted
  100  by the Child Well-Being a Guardian Ad Litem Qualifications
  101  Committee. The Child Well-Being Guardian Ad Litem Qualifications
  102  Committee shall be composed of five persons, two persons
  103  appointed by the Governor, two persons appointed by the Chief
  104  Justice of the Supreme Court, and one person appointed by the
  105  Statewide Guardian Ad Litem Association. The committee shall
  106  provide for statewide advertisement and the receiving of
  107  applications for the position of executive director. The
  108  Governor shall appoint an executive director from among the
  109  recommendations, or the Governor may reject the nominations and
  110  request the submission of new nominees. The executive director
  111  must have knowledge in dependency law and knowledge of social
  112  service delivery systems available to meet the needs of children
  113  who are abused, neglected, or abandoned. The executive director
  114  shall serve on a full-time basis and shall personally, or
  115  through representatives of the office, carry out the purposes
  116  and functions of the Statewide Guardian Ad Litem Office in
  117  accordance with state and federal law. The executive director
  118  shall report to the Governor. The executive director shall serve
  119  a 3-year term, subject to removal for cause by the Governor. Any
  120  person appointed to serve as the executive director may be
  121  reappointed permitted to serve more than one term in accordance
  122  with the process provided for in this paragraph. Every second or
  123  subsequent appointment shall be for a term of 3 years.
  124         (b) The Statewide Guardian Ad Litem Office shall, within
  125  available resources, have oversight responsibilities for and
  126  provide technical assistance to all guardian ad litem and
  127  attorney ad litem programs located within the judicial circuits.
  128         1. The office shall identify the resources required to
  129  implement methods of collecting, reporting, and tracking
  130  reliable and consistent case data.
  131         2. The office shall review the current guardian ad litem
  132  programs in Florida and other states.
  133         3. The office, in consultation with local guardian ad litem
  134  offices, shall develop statewide performance measures and
  135  standards.
  136         4. The office shall develop a guardian ad litem training
  137  program, which shall include, but is not limited to, training on
  138  the recognition of and responses to head trauma and brain injury
  139  in a child under 6 years of age. The office shall establish a
  140  curriculum committee to develop the training program specified
  141  in this subparagraph. The curriculum committee shall include,
  142  but not be limited to, dependency judges, directors of circuit
  143  guardian ad litem programs, active certified guardians ad litem,
  144  a mental health professional who specializes in the treatment of
  145  children, a member of a child advocacy group, a representative
  146  of a domestic violence advocacy group, an individual with a
  147  degree in social work, and a social worker experienced in
  148  working with victims and perpetrators of child abuse.
  149         5. The office shall review the various methods of funding
  150  guardian ad litem programs, maximize the use of those funding
  151  sources to the extent possible, and review the kinds of services
  152  being provided by circuit guardian ad litem programs.
  153         6. The office shall determine the feasibility or
  154  desirability of new concepts of organization, administration,
  155  financing, or service delivery designed to preserve the civil
  156  and constitutional rights and fulfill other needs of dependent
  157  children.
  158         7. In an effort to promote normalcy and establish trust
  159  between a court-appointed volunteer guardian ad litem and a
  160  child alleged to be abused, abandoned, or neglected under this
  161  chapter, a guardian ad litem may transport a child. However, a
  162  guardian ad litem volunteer may not be required or directed by
  163  the program or a court to transport a child.
  164         8. The office shall submit to the Governor, the President
  165  of the Senate, the Speaker of the House of Representatives, and
  166  the Chief Justice of the Supreme Court an interim report
  167  describing the progress of the office in meeting the goals as
  168  described in this section. The office shall submit to the
  169  Governor, the President of the Senate, the Speaker of the House
  170  of Representatives, and the Chief Justice of the Supreme Court a
  171  proposed plan including alternatives for meeting the state’s
  172  guardian ad litem and attorney ad litem needs. This plan may
  173  include recommendations for less than the entire state, may
  174  include a phase-in system, and shall include estimates of the
  175  cost of each of the alternatives. Each year the office shall
  176  provide a status report and provide further recommendations to
  177  address the need for guardian ad litem services and related
  178  issues.
  179         9.The office shall develop guidelines to identify any
  180  possible conflicts of interest of a guardian ad litem when he or
  181  she is being considered for assignment to a child’s case. The
  182  office must not assign a guardian ad litem for whom a conflict
  183  of interest has been identified to a child’s case. For purposes
  184  of this subparagraph, the term “conflicts of interest” means the
  185  guardian ad litem:
  186         a. Has a personal relationship that could influence a
  187  recommendation regarding a child whom he or she is serving as a
  188  guardian ad litem;
  189         b. Is in a position to derive a personal benefit from his
  190  or her role as a guardian ad litem; or
  191         c. Has a particular factor or circumstance, including
  192  personal bias or prejudice against a protected class of the
  193  child or the child’s family, that prevents or substantially
  194  impairs his or her ability to fairly and fully discharge the
  195  duties of the guardian ad litem.
  196         (c) The Statewide Guardian Ad Litem Office shall identify
  197  any guardian ad litem who is experiencing an issue with his or
  198  her physical or mental health or who appears to present a danger
  199  to any child to whom the guardian ad litem is assigned. As soon
  200  as possible after identification, the office must remove such
  201  guardian ad litem from all assigned cases, terminate his or her
  202  volunteer services with the Guardian Ad Litem Program, and
  203  disclose such action to the appropriate circuit court.
  204         Section 7. Section 39.83, Florida Statutes, is created to
  205  read:
  206         39.83 Statewide Office of Child Representation;
  207  qualifications, appointment, and duties of executive director
  208  and attorney for the child.—
  209         (1)STATEWIDE OFFICE OF CHILD REPRESENTATION.—
  210         (a)There is created a Statewide Office of Child
  211  Representation within the Justice Administrative Commission. The
  212  Justice Administrative Commission shall provide administrative
  213  support and services to the statewide office as directed by the
  214  executive director within the available resources of the
  215  commission. The statewide office is not subject to control,
  216  supervision, or direction by the Justice Administrative
  217  Commission in the performance of its duties, but the employees
  218  of the office are governed by the classification plan and salary
  219  and benefits plan approved by the Justice Administrative
  220  Commission.
  221         (b)The head of the Statewide Office of Child
  222  Representation is the executive director who must be a member of
  223  The Florida Bar in good standing for at least 5 years and have
  224  knowledge of dependency law and the social service delivery
  225  systems available to meet the needs of children who are abused,
  226  neglected, or abandoned. The executive director shall be
  227  appointed in accordance with the process, and serve in
  228  accordance with the terms and requirements, provided in s.
  229  39.8296(2)(a) for the head of the Statewide Guardian Ad Litem
  230  Office. The appointment for the initial executive director must
  231  be completed by January 1, 2022.
  232         (c)The Statewide Office of Child Representation, within
  233  available resources of the Justice Administrative Commission, is
  234  responsible for oversight of, and for providing technical
  235  assistance to, all offices of child representation in this
  236  state. The statewide office:
  237         1. Shall identify the resources required to implement
  238  methods of collecting, reporting, and tracking reliable and
  239  consistent case data;
  240         2. Shall review and collect information relating to offices
  241  of child representation and other models of attorney
  242  representation of children in other states;
  243         3. In consultation with the regional offices of child
  244  representation established under subsection (2), shall develop
  245  statewide performance measures and standards;
  246         4. Shall develop a training program for each attorney for
  247  the child. To that end, the statewide office shall establish a
  248  curriculum committee composed of members including, but not
  249  limited to, a dependency judge, a director of circuit guardian
  250  ad litem programs, an active certified guardian ad litem, a
  251  mental health professional who specializes in the treatment of
  252  children, a member of a child advocacy group, a representative
  253  of a domestic violence advocacy group, an individual with at
  254  least a Master of Social Work degree, and a social worker
  255  experienced in working with victims and perpetrators of child
  256  abuse;
  257         5. Shall develop protocols that must be implemented to
  258  assist children who are represented by the Statewide Office of
  259  Child Representation, regional offices, or its contracted local
  260  agencies in meeting eligibility requirements to receive all
  261  available federal funding. This subparagraph may not be
  262  construed to mean that the protocols may interfere with zealous
  263  and effective representation of the children;
  264         6. Shall review the various methods of funding the regional
  265  offices, maximize the use of those funding sources to the extent
  266  possible, and review the kinds of services being provided by the
  267  regional offices;
  268         7. Shall determine the feasibility or desirability of new
  269  concepts of organization, administration, financing, or service
  270  delivery designed to preserve the civil and constitutional
  271  rights of, and fulfill other needs of, dependent children 10
  272  years of age and older;
  273         8.Shall establish standards and protocols for
  274  representation of children with diminished capacity;
  275         9. Shall submit to the Governor, the President of the
  276  Senate, the Speaker of the House of Representatives, and the
  277  Chief Justice of the Supreme Court:
  278         a. An interim report describing the progress of the
  279  statewide office in meeting the responsibilities described in
  280  this paragraph.
  281         b.A proposed plan that includes alternatives for meeting
  282  the representation needs of children in this state. The plan may
  283  include recommendations for implementation in only a portion of
  284  this state or phased-in statewide implementation and must
  285  include an estimate of the cost of each such alternative.
  286         c.An annual status report that includes any additional
  287  recommendations for addressing the representation needs of
  288  children in this state and related issues.
  289         (d)The department or community-based care lead agency
  290  shall take any steps necessary to obtain all available federal
  291  funding and maintain compliance with eligibility requirements.
  292         (e)The office may contract with a local nonprofit agency
  293  to provide direct attorney representation to a child if the
  294  office determines that the contract is the most efficient method
  295  to satisfy its statutory duties and if federal funding has been
  296  approved for this purpose. The office must ensure that
  297  reimbursement of any Title IV-E funds is properly documented.
  298         (2)REGIONAL OFFICES OF CHILD REPRESENTATION.—
  299         (a)An office of child representation is created within the
  300  area served by each of the five district courts of appeal. The
  301  offices shall commence fulfilling their statutory purpose and
  302  duties on July 1, 2022.
  303         (b) Each regional office of child representation is
  304  assigned to the Justice Administrative Commission for
  305  administrative purposes. The commission shall provide
  306  administrative support and service to the offices within the
  307  available resources of the commission. The offices are not
  308  subject to control, supervision, or direction by the commission
  309  in the performance of their duties, but the employees of the
  310  offices are governed by the classification plan and the salary
  311  and benefits plan approved by the commission.
  312         (3)CHILD REPRESENTATION COUNSEL; DUTIES.—The child
  313  representation counsel shall serve on a full-time basis and may
  314  not engage in the private practice of law while holding office.
  315  Each assistant child representation counsel shall give priority
  316  and preference to his or her duties as assistant child
  317  representation counsel and may not otherwise engage in the
  318  practice of dependency law. However, a part-time child
  319  representation counsel may practice dependency law for private
  320  payment so long as the representation does not result in a legal
  321  or ethical conflict of interest with a case in which the office
  322  of child representation is providing representation.
  323         Section 8. Section 39.831, Florida Statutes, is created to
  324  read:
  325         39.831Attorney for the child.
  326         (1)APPOINTMENT.—
  327         (a) Attorney for the child:
  328         1. Shall be appointed by the court as provided in s.
  329  39.01305(3);
  330         2. Shall be appointed by the court for any child who
  331  reaches 10 years of age or older on or after July 1, 2022, and
  332  who is the subject of a dependency proceeding under this chapter
  333  or a related adoption proceeding; or
  334         3. May be appointed at the court’s discretion upon a
  335  finding that circumstances exist which require the appointment.
  336         (b) The court shall appoint the Statewide Office of Child
  337  Representation unless the child is otherwise represented by
  338  counsel.
  339         (c) If, at any time during the representation of two or
  340  more children in a dependency or related adoption proceeding, a
  341  child representation counsel determines that the interests of
  342  those clients are so adverse or hostile that they cannot all be
  343  counseled by child representation counsel or his or her staff
  344  because of a conflict of interest, the child representation
  345  counsel shall file a motion to withdraw and move the court to
  346  appoint other counsel. Child representation counsel shall not
  347  automatically determine the appointment to represent siblings is
  348  a conflict of interest. If requested by the Justice
  349  Administrative Commission, the child representation counsel
  350  shall submit a copy of the motion to the Justice Administrative
  351  Commission at the time it is filed with the court. The court
  352  shall review and may inquire or conduct a hearing into the
  353  adequacy of the child representation counsel’s submissions
  354  regarding a conflict of interest without requiring the
  355  disclosure of any confidential communications. The court shall
  356  deny the motion to withdraw if the court finds the grounds for
  357  withdraw are insufficient or the asserted conflict is not
  358  prejudicial to the client. If the court grants the motion to
  359  withdraw, the court shall appoint one or more private attorneys
  360  to represent the person in accordance with the requirements and
  361  process provided for in s. 27.40. The clerk of court shall
  362  inform the child representation counsel and the commission when
  363  the court appoints private counsel.
  364         (d) Unless the attorney has agreed to provide pro bono
  365  services, an appointed attorney or organization must be
  366  adequately compensated as provided in s. 27.5305. All appointed
  367  attorneys and organizations, including pro bono attorneys, must
  368  be provided with access to funding for expert witnesses,
  369  depositions, and other due process costs of litigation. Payment
  370  of attorney fees and case-related due process costs are subject
  371  to appropriations and review by the Justice Administrative
  372  Commission for reasonableness. The Justice Administrative
  373  Commission shall contract with attorneys appointed by the court.
  374  Attorney fees may not exceed $1,000 per child per year.
  375         (e) In cases in which one or both parents are financially
  376  able, the parent or parents, as applicable, of the child shall
  377  reimburse the court, in whole or in part, for the cost of
  378  services provided under this section; however, reimbursement for
  379  services provided by the attorney for the child may not be
  380  contingent upon successful collection by the court of
  381  reimbursement from the parent or parents.
  382         (f)An attorney for the child appointed pursuant to this
  383  section shall represent the child only in the dependency
  384  proceeding or related adoption proceeding. Once an attorney for
  385  the child is appointed, the appointment continues in effect
  386  until the attorney for the child is allowed to withdraw or is
  387  discharged by the court or until the case is dismissed. An
  388  attorney for the child who is appointed under this section to
  389  represent a child shall provide all required legal services in
  390  the dependency proceeding or related adoption proceeding from
  391  the time of the child’s removal
  392  
  393  ================= T I T L E  A M E N D M E N T ================
  394  And the title is amended as follows:
  395         Delete lines 1666 - 1671
  396  and insert:
  397         attorney for the child; requiring the court to appoint
  398         the Statewide Office of Child Representation;
  399         providing for the appointment of private counsel when
  400         the office has a conflict of interest; requiring an
  401         attorney for the child to be compensated and have
  402         access to funding for expenses with specified
  403         conditions; providing conditions under which a parent
  404         is required to reimburse the court for the cost of the
  405         attorney; providing for the scope of representation
  406         for court-appointed counsel; requiring