Fla. Stat. § 39.0138 — Florida Code / Title V / Chapter 39 / Part I / Section 39.0138
39.0138 Criminal history and other records checks; limit on placement of a child.
Status: in_force

(1) The department shall conduct a records check through the Comprehensive Child Welfare Information System and a local and statewide criminal history records check on all persons, including parents, being considered by the department for placement of a child under this chapter, including all nonrelative placement decisions, and all members of the household, 12 years of age and older, of the person being considered. For purposes of this section, a criminal history records check may include, but is not limited to, submission of fingerprints to the Department of Law Enforcement for processing and forwarding to the Federal Bureau of Investigation for state and national criminal history information, and local criminal records checks through local law enforcement agencies of all household members 18 years of age and older and other visitors 18 years of age and older to the home. An out-of-state criminal history records check must be initiated for any person 18 years of age or older who resided in another state if that state allows the release of such records. The department must complete the records check within 14 business days after receiving a person’s criminal history results, unless additional information is required to complete the processing. The department shall establish by rule standards for evaluating any information contained in the automated system relating to a person who must be screened for purposes of making a placement decision.

(2)(a) The department shall establish rules for granting an exemption from the fingerprinting requirements under subsection (1) for a household member who has a physical, developmental, or cognitive disability that prevents that person from safely submitting fingerprints. (b) Before granting an exemption, the department or its designee shall assess and document the physical, developmental, or cognitive limitations that justified the exemption and the effect of such limitations on the safety and well-being of the child being placed in the home. (c) If a fingerprint exemption is granted, a level 1 screening pursuant to s. 435.03 shall be completed on the person who is granted the exemption.

(3) The department may not place a child with a person other than a parent if the criminal history records check reveals that the person has been convicted of any felony that falls within any of the following categories: (a) Child abuse, abandonment, or neglect; (b) Domestic violence; (c) Child pornography or other felony in which a child was a victim of the offense; or (d) Homicide, sexual battery, or other felony involving violence, other than felony assault or felony battery when an adult was the victim of the assault or battery, or resisting arrest with violence.

(4) The department may not place a child with a person other than a parent if the criminal history records check reveals that the person has, within the previous 5 years, been convicted of a felony that falls within any of the following categories: (a) Assault; (b) Battery; (c) A drug-related offense; or (d) Resisting arrest with violence.

(5)(a) If a child has been sheltered pursuant to s. 39.402 and the department must arrange an emergency placement in out-of-home care for the child, the department must conduct a name-based check of criminal history records to ascertain if the person with whom placement of the child is being considered and any other adult household members of such person are disqualified. For purposes of this paragraph, the term “emergency placement” means the department is placing a child in the home of a private individual, including a neighbor, friend, or relative, as a result of an immediate removal pursuant to s. 39.402. (b) The department may place a child in the home if the person with whom placement of the child is being considered and any other adult household members or visitors of the home are not disqualified by the name-based check, but, unless exempt, such persons must submit a full set of fingerprints to the department or to a vendor, an entity, or an agency authorized under s. 943.053(13). Unless exempt, within 7 calendar days after the name-based check, the department, vendor, entity, or agency must submit the fingerprints to the Department of Law Enforcement for state processing. Within 15 calendar days after the name-based check was conducted, the Department of Law Enforcement must forward the fingerprints to the Federal Bureau of Investigation for national processing. (c) The department shall seek a court order to immediately remove the child from the home if the person with whom the child was placed or any other adult household members or visitors of the home fail to provide their fingerprints within 15 calendar days after the name-based check is conducted and such persons are not exempt from a criminal history records check.

(6) Persons with whom placement of a child is being considered or approved must disclose to the department any prior or pending local, state, or national criminal proceedings in which they are or have been involved.

(7) The department may examine the results of any criminal history records check of any person, including a parent, with whom placement of a child is being considered under this section. The complete criminal history records check must be considered when determining whether placement with the person will jeopardize the safety of the child being placed.

(8)(a) The court may review a decision of the department to grant or deny the placement of a child based upon information from the criminal history records check. The review may be upon the motion of any party, the request of any person who has been denied a placement by the department, or on the court’s own motion. The court shall prepare written findings to support its decision in this matter. (b) A person who is seeking placement of a child but is denied the placement because of the results of a criminal history records check has the burden of setting forth sufficient evidence of rehabilitation to show that the person will not present a danger to the child if the placement of the child is allowed. Evidence of rehabilitation may include, but is not limited to, the circumstances surrounding the incident providing the basis for denying the application, the time period that has elapsed since the incident, the nature of the harm caused to the victim, whether the victim was a child, the history of the person since the incident, whether the person has complied with any requirement to pay restitution, and any other evidence or circumstances indicating that the person will not present a danger to the child if the placement of the child is allowed.

History: s. 6, ch. 2006-86; s. 3, ch. 2008-245; s. 3, ch. 2012-178; s. 2, ch. 2018-103; s. 3, ch. 2020-138; s. 2, ch. 2024-177.