FL Stat § 39.402 (2021)
2021 Florida Statutes|Title V - Judicial Branch|Chapter 39 - Proceedings Relating to Children|Part IV - Taking Children Into Custody and Shelter Hearings (Ss. 39.395-39.4092)|39.402 - Placement in a shelter.

39.402 Placement in a shelter.—(1) Unless ordered by the court under this chapter, a child taken into custody shall not be placed in a shelter prior to a court hearing unless there is probable cause to believe that:(a) The child has been abused, neglected, or abandoned, or is suffering from or is in imminent danger of illness or injury as a result of abuse, neglect, or abandonment;(b) The parent or legal custodian of the child has materially violated a condition of placement imposed by the court; or(c) The child has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care.(2) A child taken into custody may be placed or continued in a shelter only if one or more of the criteria in subsection (1) applies and the court has made a specific finding of fact regarding the necessity for removal of the child from the home and has made a determination that the provision of appropriate and available services will not eliminate the need for placement.(3) Whenever a child is taken into custody, the department shall immediately notify the parents or legal custodians, shall provide the parents or legal custodians with a statement setting forth a summary of procedures involved in dependency cases, and shall notify them of their right to obtain their own attorney.(4) If the department determines that placement in a shelter is necessary under subsections (1) and (2), the authorized agent of the department shall authorize placement of the child in a shelter.(5)(a) The parents or legal custodians of the child shall be given such notice as best ensures their actual knowledge of the date, time, and location of the shelter hearing. If the parents or legal custodians are outside the jurisdiction of the court, are not known, or cannot be located or refuse or evade service, they shall be given such notice as best ensures their actual knowledge of the date, time, and location of the shelter hearing. The person providing or attempting to provide notice to the parents or legal custodians shall, if the parents or legal custodians are not present at the hearing, advise the court either in person or by sworn affidavit, of the attempts made to provide notice and the results of those attempts.(b) The parents or legal custodians shall be given written notice that:1. They will be given an opportunity to be heard and to present evidence at the shelter hearing; and2. They have the right to be represented by counsel, and, if indigent, the parents have the right to be represented by appointed counsel, at the shelter hearing and at each subsequent hearing or proceeding, pursuant to the procedures set forth in s. 39.013. If the parents or legal custodians appear for the shelter hearing without legal counsel, then, at their request, the shelter hearing may be continued up to 72 hours to enable the parents or legal custodians to consult legal counsel. If a continuance is requested by the parents or legal custodians, the child shall be continued in shelter care for the length of the continuance, if granted by the court.(6)(a) The circuit court, or the county court if previously designated by the chief judge of the circuit court for such purpose, shall hold the shelter hearing.(b) The shelter petition filed with the court must address each condition required to be determined by the court in paragraphs (8)(a), (b), (d), and (h).(7) A child may not be removed from the home or continued out of the home pending disposition if, with the provision of appropriate and available early intervention or preventive services, including services provided in the home, the child could safely remain at home. If the child’s safety and well-being are in danger, the child shall be removed from danger and continue to be removed until the danger has passed. If the child has been removed from the home and the reasons for his or her removal have been remedied, the child may be returned to the home. If the court finds that the prevention or reunification efforts of the department will allow the child to remain safely at home, the court shall allow the child to remain in the home.(8)(a) A child may not be held in a shelter longer than 24 hours unless an order so directing is entered by the court after a shelter hearing. In the interval until the shelter hearing is held, the decision to place the child in a shelter or release the child from a shelter lies with the protective investigator.(b) The parents or legal custodians of the child shall be given such notice as best ensures their actual knowledge of the time and place of the shelter hearing. The failure to provide notice to a party or participant does not invalidate an order placing a child in a shelter if the court finds that the petitioner has made a good faith effort to provide such notice. The court shall require the parents or legal custodians present at the hearing to provide to the court on the record the names, addresses, and relationships of all parents, prospective parents, and next of kin of the child, so far as are known.(c) At the shelter hearing, the court shall:1. Appoint a guardian ad litem to represent the best interest of the child, unless the court finds that such representation is unnecessary;2. Inform the parents or legal custodians of their right to counsel to represent them at the shelter hearing and at each subsequent hearing or proceeding, and the right of the parents to appointed counsel, pursuant to the procedures set forth in s. 39.013;3. Give the parents or legal custodians an opportunity to be heard and to present evidence; and4. Inquire of those present at the shelter hearing as to the identity and location of the legal father. In determining who the legal father of the child may be, the court shall inquire under oath of those present at the shelter hearing whether they have any of the following information:a. Whether the mother of the child was married at the probable time of conception of the child or at the time of birth of the child.b. Whether the mother was cohabiting with a male at the probable time of conception of the child.c. Whether the mother has received payments or promises of support with respect to the child or because of her pregnancy from a man who claims to be the father.d. Whether the mother has named any man as the father on the birth certificate of the child or in connection with applying for or receiving public assistance.e. Whether any man has acknowledged or claimed paternity of the child in a jurisdiction in which the mother resided at the time of or since conception of the child or in which the child has resided or resides.f. Whether a man is named on the birth certificate of the child pursuant to s. 382.013(2).g. Whether a man has been determined by a court order to be the father of the child.h. Whether a man has been determined to be the father of the child by the Department of Revenue as provided in s. 409.256.(d) At the shelter hearing, in order to continue the child in shelter care:1. The department must establish probable cause that reasonable grounds for removal exist and that the provision of appropriate and available services will not eliminate the need for placement; or2. The court must determine that additional time is necessary, which may not exceed 72 hours, in which to obtain and review documents pertaining to the family in order to appropriately determine the risk to the child during which time the child shall remain in the department’s custody, if so ordered by the court.(e) At the shelter hearing, the department shall provide the court copies of any available law enforcement, medical, or other professional reports, and shall also provide copies of abuse hotline reports pursuant to state and federal confidentiality requirements.(f) At the shelter hearing, the department shall inform the court of:1. Any identified current or previous case plans negotiated in any district with the parents or caregivers under this chapter and problems associated with compliance;2. Any adjudication of the parents or caregivers of delinquency;3. Any past or current injunction for protection from domestic violence; and4. All of the child’s places of residence during the prior 12 months.(g) At the shelter hearing, each party shall provide to the court a permanent mailing address. The court shall advise each party that this address will be used by the court and the petitioner for notice purposes unless and until the party notifies the court and the petitioner in writing of a new mailing address.(h) The order for placement of a child in shelter care must identify the parties present at the hearing and must contain written findings:1. That placement in shelter care is necessary based on the criteria in subsections (1) and (2).2. That placement in shelter care is in the best interest of the child.3. That continuation of the child in the home is contrary to the welfare of the child because the home situation presents a substantial and immediate danger to the child’s physical, mental, or emotional health or safety which cannot be mitigated by the provision of preventive services.4. That based upon the allegations of the petition for placement in shelter care, there is probable cause to believe that the child is dependent or that the court needs additional time, which may not exceed 72 hours, in which to obtain and review documents pertaining to the family in order to appropriately determine the risk to the child.5. That the department has made reasonable efforts to prevent or eliminate the need for removal of the child from the home. A finding of reasonable effort by the department to prevent or eliminate the need for removal may be made and the department is deemed to have made reasonable efforts to prevent or eliminate the need for removal if:a. The first contact of the department with the family occurs during an emergency;b. The appraisal of the home situation by the department indicates that the home situation presents a substantial and immediate danger to the child’s physical, mental, or emotional health or safety which cannot be mitigated by the provision of preventive services;c. The child cannot safely remain at home, either because there are no preventive services that can ensure the health and safety of the child or because, even with appropriate and available services being provided, the health and safety of the child cannot be ensured; ord. The parent or legal custodian is alleged to have committed any of the acts listed as grounds for expedited termination of parental rights in s. 39.806(1)(f)-(i).6. That the department has made reasonable efforts to place the child in order of priority as provided in s. 39.4021 unless such priority placement is not a placement option or in the best interest of the child based on the criteria and factors set out in s. 39.01375.7. That the department has made reasonable efforts to keep siblings together if they are removed and placed in out-of-home care unless such placement is not in the best interest of each child. It is preferred that siblings be kept together in a foster home, if available. Other reasonable efforts shall include short-term placement in a group home with the ability to accommodate sibling groups if such a placement is available. The department shall report to the court its efforts to place siblings together unless the court finds that such placement is not in the best interest of a child or his or her sibling.8. That the court notified the parents, relatives that are providing out-of-home care for the child, or legal custodians of the time, date, and location of the next dependency hearing and of the importance of the active participation of the parents, relatives that are providing out-of-home care for the child, or legal custodians in all proceedings and hearings.9. That the court notified the parents or legal custodians of their right to counsel to represent them at the shelter hearing and at each subsequent hearing or proceeding, and the right of the parents to appointed counsel, pursuant to the procedures set forth in s. 39.013.10. That the court notified relatives who are providing out-of-home care for a child as a result of the shelter petition being granted that they have the right to attend all subsequent hearings, to submit reports to the court, and to speak to the court regarding the child, if they so desire.11. That the department has placement and care responsibility for any child who is not placed in the care of a parent at the conclusion of the shelter hearing.(9)(a) At any shelter hearing, the department shall provide to the court a recommendation for scheduled contact between the child and parents, if appropriate. The court shall determine visitation rights absent a clear and convincing showing that visitation is not in the best interest of the child. Any order for visitation or other contact must conform to s. 39.0139. If visitation is ordered but will not commence within 72 hours of the shelter hearing, the department shall provide justification to the court.(b) If siblings who are removed from the home cannot be placed together, the department shall provide to the court a recommendation for frequent visitation or other ongoing interaction between the siblings unless this interaction would be contrary to a sibling’s safety or well-being. If visitation among siblings is ordered but will not commence within 72 hours after the shelter hearing, the department shall provide justification to the court for the delay.(10)(a) The shelter hearing order shall contain a written determination as to whether the department has made a reasonable effort to prevent or eliminate the need for removal or continued removal of the child from the home. This determination must include a description of which specific services, if available, could prevent or eliminate the need for removal or continued removal from the home and the date by which the services are expected to become available.(b) If services are not available to prevent or eliminate the need for removal or continued removal of the child from the home, the written determination must also contain an explanation describing why the services are not available for the child.(c) If the department has not made an effort to prevent or eliminate the need for removal, the court shall order the department to provide appropriate and available services to ensure the protection of the child in the home when the services are necessary for the child’s health and safety.(11)(a) If a child is placed in a shelter pursuant to a court order following a shelter hearing, the court shall require in the shelter hearing order that the parents of the child, or the guardian of the child’s estate, if possessed of assets which under law may be disbursed for the care, support, and maintenance of the child, to pay, to the department or institution having custody of the child, fees as established by the department. When the order affects the guardianship estate, a certified copy of the order shall be delivered to the judge having jurisdiction of the guardianship estate. The shelter order shall also require the parents to provide to the department and any other state agency or party designated by the court, within 28 days after entry of the shelter order, the financial information necessary to accurately calculate child support pursuant to s. 61.30.(b) The court shall request that the parents consent to provide access to the child’s medical records and provide information to the court, the department or its contract agencies, and any guardian ad litem or attorney for the child. If a parent is unavailable or unable to consent or withholds consent and the court determines access to the records and information is necessary to provide services to the child, the court shall issue an order granting access. The court may also order the parents to provide all known medical information to the department and to any others granted access under this subsection.(c) The court shall request that the parents consent to provide access to the child’s child care records, early education program records, or other educational records and provide information to the court, the department or its contract agencies, and any guardian ad litem or attorney for the child. If a parent is unavailable or unable to consent or withholds consent and the court determines access to the records and information is necessary to provide services to the child, the court shall issue an order granting access.(d) The court may appoint a surrogate parent or may refer the child to the district school superintendent for appointment of a surrogate parent if the child has or is suspected of having a disability and the parent is unavailable pursuant to s. 39.0016(3)(b).(12) In the event the shelter hearing is conducted by a judge other than the juvenile court judge, the juvenile court judge shall hold a shelter review on the status of the child within 2 working days after the shelter hearing.(13) A child may not be held in a shelter under an order so directing for more than 60 days without an adjudication of dependency. A child may not be held in a shelter for more than 30 days after the entry of an order of adjudication unless an order of disposition has been entered by the court.(14) The time limitations in this section do not include:(a) Periods of delay resulting from a continuance granted at the request or with the consent of the child’s counsel or the child’s guardian ad litem, if one has been appointed by the court, or, if the child is of sufficient capacity to express reasonable consent, at the request or with the consent of the child’s attorney or the child’s guardian ad litem, if one has been appointed by the court, and the child.(b) Periods of delay resulting from a continuance granted at the request of any party, if the continuance is granted:1. Because of an unavailability of evidence material to the case when the requesting party has exercised due diligence to obtain such evidence and there are substantial grounds to believe that such evidence will be available within 30 days. However, if the requesting party is not prepared to proceed within 30 days, any other party, inclusive of the parent or legal custodian, may move for issuance of an order to show cause or the court on its own motion may impose appropriate sanctions, which may include dismissal of the petition.2. To allow the requesting party additional time to prepare the case and additional time is justified because of an exceptional circumstance.(c) Reasonable periods of delay necessary to accomplish notice of the hearing to the child’s parents or legal custodians; however, the petitioner shall continue regular efforts to provide notice to the parents or legal custodians during such periods of delay.(d) Reasonable periods of delay resulting from a continuance granted at the request of the parent or legal custodian of a subject child.(e) Notwithstanding the foregoing, continuances and extensions of time are limited to the number of days absolutely necessary to complete a necessary task in order to preserve the rights of a party or the best interests of a child. Time is of the essence for the best interests of dependent children in conducting dependency proceedings in accordance with the time limitations set forth in this chapter. Time limitations are a right of the child which may not be waived, extended, or continued at the request of any party in advance of the particular circumstances or need arising upon which delay of the proceedings may be warranted.(f) Continuances or extensions of time may not total more than 60 days for all parties and the court on its own motion within any 12-month period during proceedings under this chapter. A continuance or extension beyond the 60 days may be granted only for extraordinary circumstances necessary to preserve the constitutional rights of a party or when substantial evidence demonstrates that the child’s best interests will be affirmatively harmed without the granting of a continuance or extension of time.(15) The department, at the conclusion of the shelter hearing, shall make available to parents or legal custodians seeking voluntary services any referral information necessary for participation in such identified services to allow the parents or legal custodians to begin the services as soon as possible. The parents’ or legal custodians’ participation in the services may not be considered an admission or other acknowledgment of the allegations in the shelter petition.(16) At the conclusion of a shelter hearing, the court shall notify all parties in writing of the next scheduled hearing to review the shelter placement. The hearing shall be held no later than 30 days after placement of the child in shelter status, in conjunction with the arraignment hearing, and at such times as are otherwise provided by law or determined by the court to be necessary.(17) At the shelter hearing, the court shall inquire of the parent whether the parent has relatives who might be considered as a placement for the child. The parent shall provide to the court and all parties identification and location information regarding the relatives. The court shall advise the parent that the parent has a continuing duty to inform the department of any relative who should be considered for placement of the child.(18) The court shall advise the parents in plain language what is expected of them to achieve reunification with their child, including that:(a) Parents must take action to comply with the case plan so permanency with the child may occur within the shortest period of time possible, but no later than 1 year after removal or adjudication of the child.(b) Parents must stay in contact with their attorney and their case manager and provide updated contact information if the parents’ phone number, address, or e-mail address changes.(c) Parents must notify the parties and the court of barriers to completing case plan tasks within a reasonable time after discovering such barriers.(d) If the parents fail to substantially comply with the case plan, their parental rights may be terminated and that the child’s out-of-home placement may become permanent.History.—s. 20, ch. 78-414; s. 13, ch. 80-290; s. 6, ch. 84-311; s. 5, ch. 85-80; s. 82, ch. 86-220; s. 5, ch. 87-133; s. 5, ch. 87-289; s. 12, ch. 88-337; s. 1, ch. 90-167; s. 7, ch. 90-208; s. 5, ch. 90-306; s. 3, ch. 92-158; s. 3, ch. 92-170; s. 7, ch. 92-287; s. 4, ch. 94-164; s. 58, ch. 94-209; s. 7, ch. 95-228; s. 3, ch. 97-96; s. 3, ch. 97-276; s. 58, ch. 98-403; s. 12, ch. 99-168; s. 23, ch. 99-193; s. 19, ch. 2000-139; s. 6, ch. 2000-151; s. 7, ch. 2000-217; s. 2, ch. 2001-68; s. 2, ch. 2002-216; s. 1, ch. 2005-65; s. 10, ch. 2006-86; s. 2, ch. 2007-109; s. 3, ch. 2009-35; s. 7, ch. 2009-43; s. 12, ch. 2014-224; s. 7, ch. 2017-151; s. 2, ch. 2018-108; s. 3, ch. 2019-128; s. 5, ch. 2019-142; s. 4, ch. 2021-169.