Florida Senate - 2015                CS for CS for CS for SB 496
       
       
        
       By the Committees on Appropriations; Judiciary; and Children,
       Families, and Elder Affairs; and Senator Detert
       
       
       
       
       576-04242-15                                           2015496c3
    1                        A bill to be entitled                      
    2         An act relating to guardians; providing a short title;
    3         amending s. 39.6251, F.S.; requiring the court at the
    4         permanency review hearing to review the necessity of
    5         continuing guardianship and whether restoration of
    6         guardianship proceedings are needed when a young adult
    7         reaches a certain age under certain circumstances;
    8         amending s. 39.701, F.S.; requiring that, for a child
    9         meeting certain requirements, the updated case plan be
   10         developed in a face-to-face conference with specified
   11         persons; 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 a proceeding under ch. 39, F.S., if
   25         such minors have attained a specified age; providing
   26         that such minors have the same due process rights as
   27         certain adults; providing requirements for when an
   28         order appointing a guardian advocate must be issued;
   29         requiring 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 proceedings under
   40         ch. 39, F.S., if petitions are filed and if such
   41         minors have reached a specified age; providing that
   42         certain minors have the same due process rights as
   43         certain adults; providing requirements for when an
   44         order of adjudication and letters of limited or
   45         plenary guardianship may be issued; requiring 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. This act may be cited as “The Regis Little Act
   53  to Protect Children with Special Needs.”
   54         Section 2. Subsection (8) of section 39.6251, Florida
   55  Statutes, is amended to read:
   56         39.6251 Continuing care for young adults.—
   57         (8) During the time that a young adult is in care, the
   58  court shall maintain jurisdiction to ensure that the department
   59  and the lead agencies are providing services and coordinate
   60  with, and maintain oversight of, other agencies involved in
   61  implementing the young adult’s case plan, individual education
   62  plan, and transition plan. The court shall review the status of
   63  the young adult at least every 6 months and hold a permanency
   64  review hearing at least annually. If the young adult has been
   65  appointed a guardian under chapter 744 or a guardian advocate
   66  under s. 393.12, the court shall review at the permanency review
   67  hearing the necessity of continuing the guardianship and whether
   68  restoration of guardianship proceedings are needed when the
   69  young adult reaches 22 years of age. The court may appoint a
   70  guardian ad litem or continue the appointment of a guardian ad
   71  litem with the young adult’s consent. The young adult or any
   72  other party to the dependency case may request an additional
   73  hearing or review.
   74         Section 3. Paragraphs (b) and (c) of subsection (3) of
   75  section 39.701, Florida Statutes, are amended to read:
   76         39.701 Judicial review.—
   77         (3) REVIEW HEARINGS FOR CHILDREN 17 YEARS OF AGE.—
   78         (b) At the first judicial review hearing held subsequent to
   79  the child’s 17th birthday, the department shall provide the
   80  court with an updated case plan that includes specific
   81  information related to the independent living skills that the
   82  child has acquired since the child’s 13th birthday, or since the
   83  date the child came into foster care, whichever came later.
   84         1. For any child that may meet the requirements for
   85  appointment of a guardian pursuant to chapter 744 or a guardian
   86  advocate pursuant to s. 393.12, the updated case plan must be
   87  developed in a face-to-face conference with the child, if
   88  appropriate; the child’s attorney; any court-appointed guardian
   89  ad litem; the temporary custodian of the child; and the parent,
   90  if the parent’s rights have not been terminated.
   91         2.At the judicial review hearing, if the court determines
   92  pursuant to the requirements of chapter 744 that there is a good
   93  faith basis to believe that the child qualifies for appointment
   94  of a guardian advocate, limited guardian, or plenary guardian
   95  and that no less restrictive decisionmaking assistance will meet
   96  the child’s needs:
   97         a. The department shall complete a multidisciplinary
   98  report, which must include, but is not limited to, a
   99  psychosocial evaluation and educational report if such a report
  100  has not been completed within the previous 2 years.
  101         b. The department shall identify one or more individuals
  102  who are willing to serve as the guardian advocate pursuant to s.
  103  393.12 or as the plenary or limited guardian pursuant to chapter
  104  744. Any other interested parties or participants may make
  105  efforts to identify such a guardian advocate, limited guardian,
  106  or plenary guardian. A child’s biological or adoptive family
  107  member, including the child’s parent if the parent’s rights have
  108  not been terminated, may not be considered for service as the
  109  plenary or limited guardian unless the court enters a written
  110  order finding that such an appointment is in the child’s best
  111  interests.
  112         c. Proceedings may be initiated within 6 months after the
  113  child’s 17th birthday for the appointment of a guardian
  114  advocate, plenary guardian, or limited guardian for the child in
  115  a separate proceeding in the division of the court with proper
  116  jurisdiction over guardianship matters and pursuant to chapter
  117  744. The Legislature encourages the use of pro bono
  118  representation to initiate proceedings under this section.
  119         3. In the event another interested party or participant
  120  initiates proceedings for the appointment of a guardian
  121  advocate, plenary guardian, or limited guardian for the child,
  122  the department shall provide all necessary documentation and
  123  information to the petitioner to complete a petition under
  124  chapter 393 or chapter 744 within 45 days after the first
  125  judicial review hearing after the child’s 17th birthday.
  126         4. Any proceedings seeking appointment of a guardian
  127  advocate or a determination of incapacity and the appointment of
  128  a guardian must be conducted in a separate proceeding in the
  129  division of the court with jurisdiction over guardianship
  130  matters and pursuant to chapter 744.
  131         (c) If the court finds at the judicial review hearing that
  132  the department has not met its obligations to the child as
  133  stated in this part, in the written case plan, or in the
  134  provision of independent living services, the court may issue an
  135  order directing the department to show cause as to why it has
  136  not done so. If the department cannot justify its noncompliance,
  137  the court may give the department 30 days within which to
  138  comply. If the department fails to comply within 30 days, the
  139  court may hold the department in contempt.
  140         Section 4. Paragraph (c) is added to subsection (2) of
  141  section 393.12, Florida Statutes, to read:
  142         393.12 Capacity; appointment of guardian advocate.—
  143         (2) APPOINTMENT OF A GUARDIAN ADVOCATE.—
  144         (c) If a petition is filed pursuant to this section
  145  requesting appointment of a guardian advocate for a minor who is
  146  the subject of any proceeding under chapter 39, the division of
  147  the court with jurisdiction over guardianship matters has
  148  jurisdiction over the proceedings pursuant to this section when
  149  the minor reaches the age of 17 years and 6 months or anytime
  150  thereafter. The minor shall be provided all the due process
  151  rights conferred upon an alleged developmentally disabled adult
  152  pursuant to this chapter. The order of appointment of a guardian
  153  advocate under this section shall be issued upon the minor’s
  154  18th birthday or as soon thereafter as possible. Any proceeding
  155  pursuant to this paragraph shall be conducted separately from
  156  any other proceeding.
  157         Section 5. Subsection (1) of section 744.301, Florida
  158  Statutes, is amended to read:
  159         744.301 Natural guardians.—
  160         (1) The parents jointly are the natural guardians of their
  161  own children and of their adopted children, during minority,
  162  unless the parents’ parental rights have been terminated
  163  pursuant to chapter 39. If a child is the subject of any
  164  proceeding under chapter 39, the parents may act as natural
  165  guardians under this section unless the dependency or probate
  166  court finds that it is not in the child’s best interests. If one
  167  parent dies, the surviving parent remains the sole natural
  168  guardian even if he or she remarries. If the marriage between
  169  the parents is dissolved, the natural guardianship belongs to
  170  the parent to whom sole parental responsibility has been
  171  granted, or if the parents have been granted shared parental
  172  responsibility, both continue as natural guardians. If the
  173  marriage is dissolved and neither parent is given parental
  174  responsibility for the child, neither may act as natural
  175  guardian of the child. The mother of a child born out of wedlock
  176  is the natural guardian of the child and is entitled to primary
  177  residential care and custody of the child unless the court
  178  enters an order stating otherwise.
  179         Section 6. Subsection (1) of section 744.3021, Florida
  180  Statutes, is amended, and subsection (4) is added to that
  181  section, to read:
  182         744.3021 Guardians of minors.—
  183         (1) Except as provided in subsection (4), upon petition of
  184  a parent, brother, sister, next of kin, or other person
  185  interested in the welfare of a minor, a guardian for a minor may
  186  be appointed by the court without the necessity of adjudication
  187  pursuant to s. 744.331. A guardian appointed for a minor,
  188  whether of the person or property, has the authority of a
  189  plenary guardian.
  190         (4) If a petition is filed pursuant to this section
  191  requesting appointment of a guardian for a minor who is the
  192  subject of any proceeding under chapter 39 and who is aged 17
  193  years and 6 months or older, the division of the court with
  194  jurisdiction over guardianship matters has jurisdiction over the
  195  proceedings under s. 744.331. The alleged incapacitated minor
  196  under this subsection shall be provided all the due process
  197  rights conferred upon an alleged incapacitated adult pursuant to
  198  this chapter and applicable court rules. The order of
  199  adjudication under s. 744.331 and the letters of limited or
  200  plenary guardianship may be issued upon the minor’s 18th
  201  birthday or as soon thereafter as possible. Any proceeding
  202  pursuant to this subsection shall be conducted separately from
  203  any other proceeding.
  204         Section 7. This act shall take effect July 1, 2015.