Bill Text: FL S0496 | 2015 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Guardians

Spectrum: Slight Partisan Bill (? 3-1)

Status: (Introduced - Dead) 2015-04-22 - Laid on Table, companion bill(s) passed, see CS/CS/HB 437 (Ch. 2015-112) [S0496 Detail]

Download: Florida-2015-S0496-Introduced.html

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       Florida Senate - 2015                                     SB 496
       
       
        
       By Senator Detert
       
       
       
       
       
       28-00384-15                                            2015496__
    1                        A bill to be entitled                      
    2         An act relating to guardians for dependent children
    3         who are developmentally disabled or incapacitated;
    4         amending s. 39.701, F.S.; requiring an updated case
    5         plan developed in a face-to-face conference with the
    6         child and other specified persons, when appropriate;
    7         providing requirements for the Department of Children
    8         and Families when a court determines that a child may
    9         be developmentally disabled, has a diagnosis of a
   10         developmental disability, or may be incapacitated;
   11         requiring the department to provide specified
   12         information if another interested party or participant
   13         initiates proceedings for the appointment of a
   14         guardian; requiring proceedings seeking appointment of
   15         a guardian advocate or a determination of incapacity
   16         and the appointment of a guardian be conducted in a
   17         separate proceeding in probate court; amending s.
   18         393.12, F.S.; requiring the probate court to initiate
   19         proceedings for appointment of guardian advocates if
   20         petitions are filed for appointment of guardian
   21         advocates for certain minors who are subject to
   22         chapter 39, F.S., proceedings if such minors have
   23         attained a specified age; providing that such a child
   24         has the same due process rights as an adult; providing
   25         requirements for when an order appointing a guardian
   26         advocate must be issued; amending s. 744.301, F.S.;
   27         providing that if a child is subject to proceedings
   28         under chapter 39, F.S., the parents may act as natural
   29         guardians unless the dependency or probate court finds
   30         that it is not in the child’s best interests or their
   31         parental rights have been terminated; amending s.
   32         744.3021, F.S.; requiring the probate court to
   33         initiate proceedings for appointment of guardian
   34         advocates if petitions are filed for appointment
   35         guardian advocates for certain minors who are subject
   36         to chapter 39, F.S., proceedings if the minors have
   37         attained a specified age; providing that such a child
   38         has the same due process rights as an adult; providing
   39         requirements for when an order appointing a guardian
   40         advocate must be issued; providing an effective date.
   41          
   42  Be It Enacted by the Legislature of the State of Florida:
   43  
   44         Section 1. Paragraphs (b) and (c) of subsection (3) of
   45  section 39.701, Florida Statutes, are amended to read:
   46         39.701 Judicial review.—
   47         (3) REVIEW HEARINGS FOR CHILDREN 17 YEARS OF AGE.—
   48         (b) At the first judicial review hearing held subsequent to
   49  the child’s 17th birthday, the department shall provide the
   50  court with an updated case plan that includes specific
   51  information related to the independent living skills that the
   52  child has acquired since the child’s 13th birthday, or since the
   53  date the child came into foster care, whichever came later.
   54         1. For any child who may be developmentally disabled or
   55  incapacitated, the updated case plan must be developed in a
   56  face-to-face conference with the child, if appropriate; the
   57  child’s attorney; any court-appointed guardian ad litem; the
   58  temporary custodian of the child; and the parent, if the
   59  parent’s rights have not been terminated.
   60         2. At the judicial review hearing, if the court determines
   61  pursuant to the procedures and requirements of chapter 744 and
   62  the Florida Probate Rules that the child may be developmentally
   63  disabled or has a diagnosis of a developmental disability as
   64  defined in s. 393.063, or may be incapacitated, the department
   65  shall:
   66         a. Complete a multidisciplinary report, which must include,
   67  but is not limited to, a psychosocial evaluation and educational
   68  report, as part of the child’s updated case plan if such a
   69  report has not been completed within the previous 2 years.
   70         b. Identify one or more individuals who are willing to
   71  serve as the guardian advocate pursuant to s. 393.12 or as the
   72  plenary or limited guardian pursuant to chapter 744 and the
   73  Florida Probate Rules. Any other parties or participants may
   74  make efforts to identify such a plenary or limited guardian. A
   75  child’s biological or adoptive family members, including a
   76  child’s parents if the parents’ rights have not been terminated,
   77  may not be considered for service as the plenary or limited
   78  guardian unless the court enters a written order finding that
   79  such an appointment is in the child’s best interests.
   80         c. Initiate proceedings within 180 days after the child’s
   81  17th birthday for the appointment of a guardian advocate,
   82  plenary guardian, or limited guardian for the child in the court
   83  with proper jurisdiction over probate matters according to the
   84  local rules of judicial administration and the procedures and
   85  requirements of chapter 744 and the Florida Probate Rules.
   86         3. In the event another interested party or participant
   87  initiates proceedings for the appointment of a guardian
   88  advocate, plenary guardian, or limited guardian for the child,
   89  the department shall provide all necessary documentation and
   90  information to the petitioner to complete a petition under
   91  chapter 393 or chapter 744 within 45 days after the first
   92  judicial review hearing after the child’s 17th birthday.
   93         4. Any proceedings seeking appointment of a guardian
   94  advocate or a determination of incapacity and the appointment of
   95  a guardian must be conducted in a separate proceeding in the
   96  court with proper jurisdiction over probate matters according to
   97  local rules of judicial administration and the procedures and
   98  requirements of chapter 744 and the Florida Probate Rules.
   99         (c) If the court finds at the judicial review hearing that
  100  the department has not met its obligations to the child as
  101  stated in this part, in the written case plan, or in the
  102  provision of independent living services, the court may issue an
  103  order directing the department to show cause as to why it has
  104  not done so. If the department cannot justify its noncompliance,
  105  the court may give the department 30 days within which to
  106  comply. If the department fails to comply within 30 days, the
  107  court may hold the department in contempt.
  108         Section 2. Paragraph (c) is added to subsection (2) of
  109  section 393.12, Florida Statutes, to read:
  110         393.12 Capacity; appointment of guardian advocate.—
  111         (2) APPOINTMENT OF A GUARDIAN ADVOCATE.—
  112         (c) If a petition is filed pursuant to this section
  113  requesting appointment of a guardian advocate for a minor who is
  114  alleged to be developmentally disabled and is the subject of any
  115  proceeding under chapter 39, the court with proper jurisdiction
  116  over probate matters according to local rules of judicial
  117  administration and the Florida Probate Rules shall initiate
  118  proceedings pursuant to this section when the minor reaches the
  119  age of 17 years and 6 months or anytime thereafter. The minor
  120  shall be provided all the due process rights conferred upon an
  121  alleged developmentally disabled adult pursuant to this chapter.
  122  The order of appointment of guardian advocate under this section
  123  shall issue upon the minor’s 18th birthday or as soon thereafter
  124  as possible.
  125         Section 3. Subsection (1) of section 744.301, Florida
  126  Statutes, is amended to read:
  127         744.301 Natural guardians.—
  128         (1) The parents jointly are the natural guardians of their
  129  own children and of their adopted children, during minority,
  130  unless the parent’s parental rights have been terminated
  131  pursuant to chapter 39. If a child is the subject of any
  132  proceeding under chapter 39, the parents may act as natural
  133  guardians under this section unless the dependency or probate
  134  court finds that it is not in the child’s best interests. If one
  135  parent dies, the surviving parent remains the sole natural
  136  guardian even if he or she remarries. If the marriage between
  137  the parents is dissolved, the natural guardianship belongs to
  138  the parent to whom sole parental responsibility has been
  139  granted, or if the parents have been granted shared parental
  140  responsibility, both continue as natural guardians. If the
  141  marriage is dissolved and neither parent is given parental
  142  responsibility for the child, neither may act as natural
  143  guardian of the child. The mother of a child born out of wedlock
  144  is the natural guardian of the child and is entitled to primary
  145  residential care and custody of the child unless the court
  146  enters an order stating otherwise.
  147         Section 4. Subsection (1) of section 744.3021, Florida
  148  Statutes, is amended, and subsection (4) is added to that
  149  section, to read:
  150         744.3021 Guardians of minors.—
  151         (1) Except as provided in subsection (4), upon petition of
  152  a parent, brother, sister, next of kin, or other person
  153  interested in the welfare of a minor, a guardian for a minor may
  154  be appointed by the court without the necessity of adjudication
  155  pursuant to s. 744.331. A guardian appointed for a minor,
  156  whether of the person or property, has the authority of a
  157  plenary guardian.
  158         (4) If a petition is filed pursuant to this section
  159  requesting appointment of a guardian for a minor that is the
  160  subject of any proceeding under chapter 39 and who is aged 17
  161  years and 6 months or older, the court with proper jurisdiction
  162  over probate matters according to local rules of judicial
  163  administration and the procedures and requirements of this
  164  chapter and the Florida Probate Rules shall initiate proceedings
  165  under s. 744.331. The alleged incapacitated minor under this
  166  subsection shall be provided all the due process rights
  167  conferred upon an alleged incapacitated adult pursuant to this
  168  chapter and the Florida Probate Rules. The order of adjudication
  169  under s. 744.331 and the letters of limited or plenary
  170  guardianship may issue upon the minor’s 18th birthday or as soon
  171  thereafter as possible.
  172         Section 5. This act shall take effect July 1, 2015.