Bill Text: FL S0496 | 2015 | Regular Session | Comm Sub

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-Comm_Sub.html

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       Florida Senate - 2015                       CS for CS for SB 496
       
       
        
       By the Committees on Judiciary; and Children, Families, and
       Elder Affairs; and Senator Detert
       
       
       
       
       590-02146-15                                           2015496c2
    1                        A bill to be entitled                      
    2         An act relating to guardians; amending s. 39.6251,
    3         F.S.; requiring the court at the permanency review
    4         hearing to review the necessity of the guardianship
    5         and whether restoration of guardianship proceedings
    6         are needed when the young adult reaches a certain age
    7         under certain circumstances; amending s. 39.701, F.S.;
    8         requiring that, for a child meeting certain
    9         requirements, the updated case plan be developed in a
   10         face-to-face conference with specified persons
   11         present; requiring the Department of Children and
   12         Families to take specified actions at the judicial
   13         review hearing if the court makes certain
   14         determinations; requiring the department to provide
   15         documentation and information to a petitioner under
   16         certain circumstances; requiring certain proceedings
   17         to be conducted separately; expanding the
   18         circumstances under which a court, after making
   19         certain findings, may issue an order directing the
   20         department to show cause; amending s. 393.12, F.S.;
   21         providing that the guardianship court has jurisdiction
   22         over proceedings for appointment of a guardian
   23         advocate if petitions are filed for certain minors who
   24         are subject to ch. 39, F.S., proceedings if such
   25         minors have attained a specified age; providing that
   26         such minor has the same due process rights as certain
   27         adults; providing requirements for when an order
   28         appointing a guardian advocate must be issued;
   29         providing that proceedings seeking appointment of a
   30         guardian advocate for certain minors be conducted in
   31         separate proceedings; amending s. 744.301, F.S.;
   32         providing that if a child is subject to proceedings
   33         under ch. 39, F.S., the parents may act as natural
   34         guardians unless the dependency or probate court finds
   35         that it is not in the child’s best interests or their
   36         parental rights have been terminated; amending s.
   37         744.3021, F.S.; requiring the guardianship court to
   38         initiate proceedings for appointment of guardians for
   39         certain minors who are subject to ch. 39, F.S.,
   40         proceedings if petitions are filed and if such minors
   41         have reached a specified age; providing that such
   42         minor has the same due process rights as certain
   43         adults; providing requirements for when an order of
   44         adjudication and letters of limited or plenary
   45         guardianship must be issued; providing that
   46         proceedings seeking appointment of a guardian advocate
   47         for certain minors be conducted in separate
   48         proceedings; providing an effective date.
   49          
   50  Be It Enacted by the Legislature of the State of Florida:
   51  
   52         Section 1. Subsection (8) of section 39.6251, Florida
   53  Statutes, is amended to read:
   54         39.6251 Continuing care for young adults.—
   55         (8) During the time that a young adult is in care, the
   56  court shall maintain jurisdiction to ensure that the department
   57  and the lead agencies are providing services and coordinate
   58  with, and maintain oversight of, other agencies involved in
   59  implementing the young adult’s case plan, individual education
   60  plan, and transition plan. The court shall review the status of
   61  the young adult at least every 6 months and hold a permanency
   62  review hearing at least annually. If the young adult has been
   63  appointed a guardian under chapter 744 or a guardian advocate
   64  under s. 393.12, the court shall review at the permanency review
   65  hearing the necessity of continuing the guardianship and whether
   66  restoration of guardianship proceedings are needed when the
   67  young adult reaches 22 years of age. The court may appoint a
   68  guardian ad litem or continue the appointment of a guardian ad
   69  litem with the young adult’s consent. The young adult or any
   70  other party to the dependency case may request an additional
   71  hearing or review.
   72         Section 2. Paragraphs (b) and (c) of subsection (3) of
   73  section 39.701, Florida Statutes, are amended to read:
   74         39.701 Judicial review.—
   75         (3) REVIEW HEARINGS FOR CHILDREN 17 YEARS OF AGE.—
   76         (b) At the first judicial review hearing held subsequent to
   77  the child’s 17th birthday, the department shall provide the
   78  court with an updated case plan that includes specific
   79  information related to the independent living skills that the
   80  child has acquired since the child’s 13th birthday, or since the
   81  date the child came into foster care, whichever came later.
   82         1. For any child that may meet the requirements for
   83  appointment of a guardian pursuant to chapter 744 or a guardian
   84  advocate pursuant to s. 393.12, the updated case plan must be
   85  developed in a face-to-face conference with the child, if
   86  appropriate; the child’s attorney; any court-appointed guardian
   87  ad litem; the temporary custodian of the child; and the parent,
   88  if the parent’s rights have not been terminated.
   89         2. At the judicial review hearing, if the court determines
   90  pursuant to the requirements of chapter 744 that there is a good
   91  faith basis to believe that the child qualifies for appointment
   92  of a guardian advocate, limited guardian, or plenary guardian
   93  and that no less restrictive decisionmaking assistance will meet
   94  the child’s needs:
   95         a. The department shall complete a multidisciplinary report
   96  which must include, but is not limited to, a psychosocial
   97  evaluation and educational report if such a report has not been
   98  completed within the previous 2 years.
   99         b. The department shall identify one or more individuals
  100  who are willing to serve as the guardian advocate pursuant to s.
  101  393.12 or as the plenary or limited guardian pursuant to chapter
  102  744. Any other interested parties or participants may make
  103  efforts to identify such a guardian advocate, limited guardian,
  104  or plenary guardian. A child’s biological or adoptive family
  105  member, including the child’s parent if the parent’s rights have
  106  not been terminated, may not be considered for service as the
  107  plenary or limited guardian unless the court enters a written
  108  order finding that such an appointment is in the child’s best
  109  interests.
  110         c. Proceedings may be initiated within 6 months after the
  111  child’s 17th birthday for the appointment of a guardian
  112  advocate, plenary guardian, or limited guardian for the child in
  113  a separate proceeding in the division of the court with proper
  114  jurisdiction over guardianship matters and pursuant to chapter
  115  744. The Legislature encourages the use of pro bono
  116  representation to initiate proceedings under this section.
  117         3. In the event another interested party or participant
  118  initiates proceedings for the appointment of a guardian
  119  advocate, plenary guardian, or limited guardian for the child,
  120  the department shall provide all necessary documentation and
  121  information to the petitioner to complete a petition under
  122  chapter 393 or chapter 744 within 45 days after the first
  123  judicial review hearing after the child’s 17th birthday.
  124         4. Any proceedings seeking appointment of a guardian
  125  advocate or a determination of incapacity and the appointment of
  126  a guardian must be conducted in a separate proceeding in the
  127  division of the court with jurisdiction over guardianship
  128  matters and pursuant to chapter 744.
  129         (c) If the court finds at the judicial review hearing that
  130  the department has not met its obligations to the child as
  131  stated in this part, in the written case plan, or in the
  132  provision of independent living services, the court may issue an
  133  order directing the department to show cause as to why it has
  134  not done so. If the department cannot justify its noncompliance,
  135  the court may give the department 30 days within which to
  136  comply. If the department fails to comply within 30 days, the
  137  court may hold the department in contempt.
  138         Section 3. Paragraph (c) is added to subsection (2) of
  139  section 393.12, Florida Statutes, to read:
  140         393.12 Capacity; appointment of guardian advocate.—
  141         (2) APPOINTMENT OF A GUARDIAN ADVOCATE.—
  142         (c) If a petition is filed pursuant to this section
  143  requesting appointment of a guardian advocate for a minor who is
  144  the subject of any proceeding under chapter 39, the division of
  145  the court with jurisdiction over guardianship matters has
  146  jurisdiction over the proceedings pursuant to this section when
  147  the minor reaches the age of 17 years and 6 months or anytime
  148  thereafter. The minor shall be provided all the due process
  149  rights conferred upon an alleged developmentally disabled adult
  150  pursuant to this chapter. The order of appointment of a guardian
  151  advocate under this section shall issue upon the minor’s 18th
  152  birthday or as soon thereafter as possible. Any proceeding
  153  pursuant to this paragraph shall be conducted separately from
  154  any other proceeding.
  155         Section 4. Subsection (1) of section 744.301, Florida
  156  Statutes, is amended to read:
  157         744.301 Natural guardians.—
  158         (1) The parents jointly are the natural guardians of their
  159  own children and of their adopted children, during minority,
  160  unless the parents’ parental rights have been terminated
  161  pursuant to chapter 39. If a child is the subject of any
  162  proceeding under chapter 39, the parents may act as natural
  163  guardians under this section unless the dependency or probate
  164  court finds that it is not in the child’s best interests. If one
  165  parent dies, the surviving parent remains the sole natural
  166  guardian even if he or she remarries. If the marriage between
  167  the parents is dissolved, the natural guardianship belongs to
  168  the parent to whom sole parental responsibility has been
  169  granted, or if the parents have been granted shared parental
  170  responsibility, both continue as natural guardians. If the
  171  marriage is dissolved and neither parent is given parental
  172  responsibility for the child, neither may act as natural
  173  guardian of the child. The mother of a child born out of wedlock
  174  is the natural guardian of the child and is entitled to primary
  175  residential care and custody of the child unless the court
  176  enters an order stating otherwise.
  177         Section 5. Subsection (1) of section 744.3021, Florida
  178  Statutes, is amended, and subsection (4) is added to that
  179  section, to read:
  180         744.3021 Guardians of minors.—
  181         (1) Except as provided in subsection (4), upon petition of
  182  a parent, brother, sister, next of kin, or other person
  183  interested in the welfare of a minor, a guardian for a minor may
  184  be appointed by the court without the necessity of adjudication
  185  pursuant to s. 744.331. A guardian appointed for a minor,
  186  whether of the person or property, has the authority of a
  187  plenary guardian.
  188         (4) If a petition is filed pursuant to this section
  189  requesting appointment of a guardian for a minor who is the
  190  subject of any proceeding under chapter 39 and who is aged 17
  191  years and 6 months or older, the division of the court with
  192  jurisdiction over guardianship matters has jurisdiction over the
  193  proceedings under s. 744.331. The alleged incapacitated minor
  194  under this subsection shall be provided all the due process
  195  rights conferred upon an alleged incapacitated adult pursuant to
  196  this chapter and applicable court rules. The order of
  197  adjudication under s. 744.331 and the letters of limited or
  198  plenary guardianship may issue upon the minor’s 18th birthday or
  199  as soon thereafter as possible. Any proceeding pursuant to this
  200  subsection shall be conducted separately from any other
  201  proceeding.
  202         Section 6. This act shall take effect July 1, 2015.