Florida Senate - 2023                                    SB 1440
       
       
        
       By Senator Book
       
       
       
       
       
       35-01192A-23                                          20231440__
    1                        A bill to be entitled                      
    2         An act relating to court proceedings; amending s.
    3         39.013, F.S.; authorizing individuals to appear at or
    4         attend dependency proceedings through audio-video
    5         communication technology; providing an exception to
    6         such authorization; amending s. 39.0131, F.S.;
    7         requiring parties in certain proceedings to provide
    8         their primary e-mail address to the court; requiring
    9         the court to advise parties on how such addresses will
   10         be used; authorizing the court to excuse such
   11         requirement for good cause shown; requiring the court
   12         to excuse such requirement under certain
   13         circumstances; amending s. 39.402, F.S.; requiring
   14         that court notices for shelter hearings held through
   15         audio-video communication technology include certain
   16         information; amending s. 39.502, F.S.; authorizing
   17         parties to consent to service or notice by e-mail for
   18         shelter hearings and hearings regarding medical
   19         emergencies; requiring that certain summons or notices
   20         include instructions for appearing through audio-video
   21         communication technology, if applicable; authorizing a
   22         party to consent to service of a summons by e-mail;
   23         requiring the court to provide certain instructions
   24         for hearings conducted through audio-video
   25         communication technology; requiring the attorney for
   26         the Department of Children and Families to provide
   27         instructions for appearance through audio-video
   28         communication technology to certain relatives, if
   29         applicable; making technical changes; amending s.
   30         39.506, F.S.; conforming provisions to changes made by
   31         the act; requiring each party to provide a permanent
   32         e-mail address at an arraignment hearing; requiring
   33         the court to advise parties on how such addresses will
   34         be used; authorizing the court to excuse such
   35         requirement for good cause shown; requiring the court
   36         to excuse such requirement under certain
   37         circumstances; amending s. 39.521, F.S.; requiring
   38         that disposition orders issued by the court include
   39         instructions for appearance at certain hearings
   40         through audio-video communication technology, if
   41         applicable; amending s. 39.801, F.S.; requiring that
   42         notices for advisory hearings for petition for
   43         termination of parental rights include instructions
   44         for appearance through audio-video communication
   45         technology, if applicable; authorizing a party to
   46         consent to service or notice of such advisory hearing
   47         by e-mail; conforming provisions to changes made by
   48         the act; specifying that if a person fails to appear
   49         at an advisory hearing either physically or through
   50         audio-video communication technology, it constitutes
   51         consent to termination of parental rights; requiring
   52         the court to provide instructions for appearance by
   53         audio-video communication technology, if applicable,
   54         at an adjudicatory hearing for the petition of
   55         termination of parental rights; specifying that
   56         failure to appear, either physically or through audio
   57         video communication technology, at an adjudicatory
   58         hearing constitutes consent to termination of parental
   59         rights; amending s. 92.54, F.S.; authorizing that the
   60         testimony of children be given through audio-video
   61         communication technology under certain circumstances;
   62         amending s. 985.319, F.S.; requiring that a summons
   63         provide instruction on how to attend a hearing if the
   64         hearing is to be held through audio-video
   65         communication technology; providing an effective date.
   66          
   67  Be It Enacted by the Legislature of the State of Florida:
   68  
   69         Section 1. Subsection (13) is added to section 39.013,
   70  Florida Statutes, to read:
   71         39.013 Procedures and jurisdiction; right to counsel.—
   72         (13)Except as otherwise provided in this chapter, an
   73  individual’s appearance or attendance at dependency proceedings
   74  may be through his or her physical appearance or attendance or,
   75  at the discretion of the court, through audio-video
   76  communication technology, unless the court determines that
   77  appearance through audio-video communication technology is
   78  inconsistent with the United States Constitution, the State
   79  Constitution, a statute, a rule of court, or a court order.
   80         Section 2. Section 39.0131, Florida Statutes, is amended to
   81  read:
   82         39.0131 Permanent mailing and primary e-mail address
   83  designation.—Upon the first appearance before the court, each
   84  party shall provide to the court a permanent mailing address and
   85  primary e-mail address. The court shall advise each party that
   86  these addresses this address will be used by the court and the
   87  petitioner for notice purposes unless and until the party
   88  notifies the court and the petitioner in writing of a new
   89  mailing or e-mail address. The court may excuse a party from the
   90  requirement to provide an e-mail address for good cause shown.
   91  The court must excuse a party who is incarcerated and is not
   92  represented by an attorney from the requirement to provide an e
   93  mail address.
   94         Section 3. Subsection (16) of section 39.402, Florida
   95  Statutes, is amended to read:
   96         39.402 Placement in a shelter.—
   97         (16) At the conclusion of a shelter hearing, the court
   98  shall notify all parties in writing of the next scheduled
   99  hearing to review the shelter placement. If the hearing will be
  100  held through audio-video communication technology, the written
  101  notice must include all relevant information needed to attend
  102  the proceeding. The hearing must shall be held no later than 30
  103  days after placement of the child in shelter status, in
  104  conjunction with the arraignment hearing, and at such times as
  105  are otherwise provided by law or determined by the court to be
  106  necessary.
  107         Section 4. Subsections (1), (4), (5), (18), and (19) of
  108  section 39.502, Florida Statutes, are amended to read:
  109         39.502 Notice, process, and service.—
  110         (1) Unless parental rights have been terminated, all
  111  parents must be notified of all proceedings or hearings
  112  involving the child. Notice in cases involving shelter hearings
  113  and hearings resulting from medical emergencies must be provided
  114  in the manner that most likely to result in actual notice to the
  115  parents. A party may consent to service or notice by e-mail by
  116  providing a primary e-mail address to the clerk of the court. In
  117  all other dependency proceedings, notice must be provided in
  118  accordance with subsections (4)-(9), except when a relative
  119  requests notification pursuant to s. 39.301(14)(b), in which
  120  case notice shall be provided pursuant to subsection (19).
  121         (4) The summons must shall require the person on whom it is
  122  served to appear for a hearing at a time and place specified,
  123  not less than 72 hours after service of the summons. If
  124  applicable, the summons must also include instructions for
  125  appearing at the hearing through audio-video communication
  126  technology. A copy of the petition shall be attached to the
  127  summons.
  128         (5) The summons must shall be directed to, and must shall
  129  be served upon, all parties other than the petitioner. A party
  130  may consent to service by e-mail by providing a primary e-mail
  131  address to the clerk of the court.
  132         (18) In all proceedings under this part, the court shall
  133  provide to the parent or legal custodian of the child, at the
  134  conclusion of any hearing, a written notice containing the date
  135  of the next scheduled hearing. The court shall also include the
  136  date of the next hearing in any order issued by the court. If
  137  the hearing is to be conducted through audio-video communication
  138  technology, the instructions for appearance must also be
  139  included.
  140         (19) In all proceedings and hearings under this chapter,
  141  the attorney for the department shall notify, orally or in
  142  writing, a relative requesting notification pursuant to s.
  143  39.301(14)(b) of the date, time, and location of such
  144  proceedings and hearings and, if applicable, the instructions
  145  for appearance through audio-video communication technology, and
  146  notify the relative that he or she has the right to attend all
  147  subsequent proceedings and hearings, to submit reports to the
  148  court, and to speak to the court regarding the child, if the
  149  relative so desires. The court has the discretion to release the
  150  attorney for the department from notifying a relative who
  151  requested notification pursuant to s. 39.301(14)(b) if the
  152  relative’s involvement is determined to be impeding the
  153  dependency process or detrimental to the child’s well-being.
  154         Section 5. Subsections (3) and (4) of section 39.506,
  155  Florida Statutes, are amended to read:
  156         39.506 Arraignment hearings.—
  157         (3) Failure of a person served with notice to personally
  158  appear at the arraignment hearing constitutes the person’s
  159  consent to a dependency adjudication. The document containing
  160  the notice to respond or appear must contain, in type at least
  161  as large as the balance of the document, the following or
  162  substantially similar language: “FAILURE TO PERSONALLY APPEAR AT
  163  THE ARRAIGNMENT HEARING CONSTITUTES CONSENT TO THE ADJUDICATION
  164  OF THIS CHILD (OR CHILDREN) AS A DEPENDENT CHILD (OR CHILDREN)
  165  AND MAY ULTIMATELY RESULT IN LOSS OF CUSTODY OF THIS CHILD (OR
  166  CHILDREN).” If a person appears for the arraignment hearing and
  167  the court orders that person to personally appear, either
  168  physically or through audio-video communication technology, at
  169  the adjudicatory hearing for dependency, stating the date, time,
  170  and place, and, if applicable, the instructions for appearance
  171  through audio-video communication technology, of the
  172  adjudicatory hearing, then that person’s failure to appear for
  173  the scheduled adjudicatory hearing constitutes consent to a
  174  dependency adjudication.
  175         (4) At the arraignment hearing, each party shall provide to
  176  the court a permanent mailing address and a primary e-mail
  177  address. The court shall advise each party that these addresses
  178  this address will be used by the court and the petitioner for
  179  notice purposes unless and until the party notifies the court
  180  and the petitioner in writing of a new mailing or e-mail
  181  address. The court may, for good cause shown, excuse a party
  182  from the requirement to provide an e-mail address. The court
  183  must excuse a party who is incarcerated and is not represented
  184  by an attorney from the requirement to provide an e-mail
  185  address.
  186         Section 6. Paragraph (e) of subsection (1) of section
  187  39.521, Florida Statutes, is amended to read:
  188         39.521 Disposition hearings; powers of disposition.—
  189         (1) A disposition hearing shall be conducted by the court,
  190  if the court finds that the facts alleged in the petition for
  191  dependency were proven in the adjudicatory hearing, or if the
  192  parents or legal custodians have consented to the finding of
  193  dependency or admitted the allegations in the petition, have
  194  failed to appear for the arraignment hearing after proper
  195  notice, or have not been located despite a diligent search
  196  having been conducted.
  197         (e) The court shall, in its written order of disposition,
  198  include all of the following:
  199         1. The placement or custody of the child.
  200         2. Special conditions of placement and visitation.
  201         3. Evaluation, counseling, treatment activities, and other
  202  actions to be taken by the parties, if ordered.
  203         4. The persons or entities responsible for supervising or
  204  monitoring services to the child and parent.
  205         5. Continuation or discharge of the guardian ad litem, as
  206  appropriate.
  207         6. The date, time, and location of the next scheduled
  208  review hearing and, if applicable, instructions for appearance
  209  through audio-video communication technology, which must occur
  210  within the earlier of:
  211         a. Ninety days after the disposition hearing;
  212         b. Ninety days after the court accepts the case plan;
  213         c. Six months after the date of the last review hearing; or
  214         d. Six months after the date of the child’s removal from
  215  his or her home, if no review hearing has been held since the
  216  child’s removal from the home.
  217         7. If the child is in an out-of-home placement, child
  218  support to be paid by the parents, or the guardian of the
  219  child’s estate if possessed of assets which under law may be
  220  disbursed for the care, support, and maintenance of the child.
  221  The court may exercise jurisdiction over all child support
  222  matters, shall adjudicate the financial obligation, including
  223  health insurance, of the child’s parents or guardian, and shall
  224  enforce the financial obligation as provided in chapter 61. The
  225  state’s child support enforcement agency shall enforce child
  226  support orders under this section in the same manner as child
  227  support orders under chapter 61. Placement of the child is not
  228  shall not be contingent upon issuance of a support order.
  229         8.a. If the court does not commit the child to the
  230  temporary legal custody of an adult relative, legal custodian,
  231  or other adult approved by the court, the disposition order must
  232  include the reasons for such a decision and shall include a
  233  determination as to whether diligent efforts were made by the
  234  department to locate an adult relative, legal custodian, or
  235  other adult willing to care for the child in order to present
  236  that placement option to the court instead of placement with the
  237  department.
  238         b. If no suitable relative is found and the child is placed
  239  with the department or a legal custodian or other adult approved
  240  by the court, both the department and the court must shall
  241  consider transferring temporary legal custody to an adult
  242  relative approved by the court at a later date, but neither the
  243  department nor the court is obligated to so place the child if
  244  it is in the child’s best interest to remain in the current
  245  placement.
  246  
  247  For the purposes of this section, “diligent efforts to locate an
  248  adult relative” means a search similar to the diligent search
  249  for a parent, but without the continuing obligation to search
  250  after an initial adequate search is completed.
  251         9. Other requirements necessary to protect the health,
  252  safety, and well-being of the child, to preserve the stability
  253  of the child’s child care, early education program, or any other
  254  educational placement, and to promote family preservation or
  255  reunification whenever possible.
  256         Section 7. Paragraphs (a) and (d) of subsection (3) of
  257  section 39.801, Florida Statutes, are amended to read:
  258         39.801 Procedures and jurisdiction; notice; service of
  259  process.—
  260         (3) Before the court may terminate parental rights, in
  261  addition to the other requirements set forth in this part, the
  262  following requirements must be met:
  263         (a) Notice of the date, time, and place of the advisory
  264  hearing for the petition to terminate parental rights; if
  265  applicable, instructions for appearance through audio-video
  266  communication technology; and a copy of the petition must be
  267  personally served upon the following persons, specifically
  268  notifying them that a petition has been filed:
  269         1. The parents of the child.
  270         2. The legal custodians of the child.
  271         3. If the parents who would be entitled to notice are dead
  272  or unknown, a living relative of the child, unless upon diligent
  273  search and inquiry no such relative can be found.
  274         4. Any person who has physical custody of the child.
  275         5. Any grandparent entitled to priority for adoption under
  276  s. 63.0425.
  277         6. Any prospective parent who has been identified under s.
  278  39.503 or s. 39.803, unless a court order has been entered
  279  pursuant to s. 39.503(4) or (9) or s. 39.803(4) or (9) which
  280  indicates no further notice is required. Except as otherwise
  281  provided in this section, if there is not a legal father, notice
  282  of the petition for termination of parental rights must be
  283  provided to any known prospective father who is identified under
  284  oath before the court or who is identified by a diligent search
  285  of the Florida Putative Father Registry. Service of the notice
  286  of the petition for termination of parental rights is not
  287  required if the prospective father executes an affidavit of
  288  nonpaternity or a consent to termination of his parental rights
  289  which is accepted by the court after notice and opportunity to
  290  be heard by all parties to address the best interests of the
  291  child in accepting such affidavit.
  292         7. The guardian ad litem for the child or the
  293  representative of the guardian ad litem program, if the program
  294  has been appointed.
  295  
  296  A party may consent to service or notice by e-mail by providing
  297  a primary e-mail address to the clerk of the court. The document
  298  containing the notice to respond or appear must contain, in type
  299  at least as large as the type in the balance of the document,
  300  the following or substantially similar language: “FAILURE TO
  301  PERSONALLY APPEAR AT THIS ADVISORY HEARING CONSTITUTES CONSENT
  302  TO THE TERMINATION OF PARENTAL RIGHTS OF THIS CHILD (OR
  303  CHILDREN). IF YOU FAIL TO APPEAR ON THE DATE AND TIME SPECIFIED,
  304  YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE CHILD OR
  305  CHILDREN NAMED IN THE PETITION ATTACHED TO THIS NOTICE.”
  306         (d) If the person served with notice under this section
  307  fails to personally appear at the advisory hearing, either
  308  physically or, at the discretion of the court, through audio
  309  video communication technology, the failure to personally appear
  310  constitutes shall constitute consent for termination of parental
  311  rights by the person given notice. If a parent appears for the
  312  advisory hearing and the court orders that parent to personally
  313  appear at the adjudicatory hearing for the petition for
  314  termination of parental rights, stating the date, time, and
  315  location of the said hearing and, if applicable, instructions
  316  for appearance through audio-video communication technology,
  317  then failure of that parent to personally appear, either
  318  physically or, at the discretion of the court, through audio
  319  video communication technology, at the adjudicatory hearing
  320  constitutes shall constitute consent for termination of parental
  321  rights.
  322         Section 8. Section 92.54, Florida Statutes, is amended to
  323  read:
  324         92.54 Use of closed-circuit television and audio-video
  325  communication technology in proceedings involving a victim or
  326  witness under the age of 18 or who has an intellectual
  327  disability.—
  328         (1) Upon motion and hearing in camera and upon a finding
  329  that there is a substantial likelihood that a victim or witness
  330  under the age of 18 or who has an intellectual disability will
  331  suffer at least moderate emotional or mental harm due to the
  332  presence of the defendant if such victim or witness is required
  333  to testify in open court, or is unavailable as defined in s.
  334  90.804(1), the trial court may order that the testimony of the
  335  victim or witness be taken outside of the courtroom and shown by
  336  means of closed-circuit television or through audio-video
  337  communication technology.
  338         (2) The motion may be filed by the victim or witness; the
  339  attorney, parent, legal guardian, or guardian ad litem of the
  340  victim or witness; the prosecutor; the defendant or the
  341  defendant’s counsel; or the trial judge on his or her own
  342  motion.
  343         (3) Only the judge, the prosecutor, the defendant, the
  344  attorney for the defendant, the operators of the videotape
  345  equipment, an interpreter, and some other person who, in the
  346  opinion of the court, contributes to the well-being of the child
  347  or the person who has an intellectual disability and who will
  348  not be a witness in the case may be in the room during the
  349  recording of the testimony.
  350         (4) During the victim’s or witness’s testimony by closed
  351  circuit television or through audio-video communication
  352  technology, the court may require the defendant to view the
  353  testimony from the courtroom. In such a case, the court shall
  354  permit the defendant to observe and hear the testimony of the
  355  victim or witness, but must ensure that the victim or witness
  356  cannot hear or see the defendant. The defendant’s right to
  357  assistance of counsel, which includes the right to immediate and
  358  direct communication with counsel conducting cross-examination,
  359  must be protected and, upon the defendant’s request, such
  360  communication must be provided by any appropriate electronic
  361  method.
  362         (5) The court shall make specific findings of fact, on the
  363  record, as to the basis for its ruling under this section.
  364         Section 9. Subsection (3) of section 985.319, Florida
  365  Statutes, is amended to read:
  366         985.319 Process and service.—
  367         (3) The summons must shall have a copy of the petition
  368  attached and must shall require the person on whom it is served
  369  to appear for a hearing at a time and place specified. If the
  370  hearing is to be held through audio-video communication
  371  technology, the summons must provide instructions on how to
  372  attend the hearing. Except in cases of medical emergency, the
  373  time may not be less than 24 hours after service of the summons.
  374  If the child is not detained by an order of the court, the
  375  summons must shall require the custodian of the child to produce
  376  the child at the said time and place.
  377         Section 10. This act shall take effect upon becoming a law.