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The Florida Bar
The Florida Bar Journal
May, 2008 Volume 82, No. 5
Florida Statute §39.0139: Limiting the Risk of Serious Harm to Children

by Judge Sue Robbins

Page 45

F.S. §39.0139, Florida’s “Keeping Children Safe Act” (KCSA), became law July 1, 2007. The KCSA’s declared purpose is to protect children “who have been sexually abused or exploited by a parent or other caregiver”1 and concludes that such children are at risk of suffering from further harm during visitation or other contact, and that visitation or contact may be used to influence their testimony.2 Therefore, the KCSA creates a “presumption of detriment”3 to a child under certain circumstances, and places “additional requirements on judicial determinations related to visitation and other contact.”4

In a recently published Florida Bar Journal article, “F.S. §39.0139: Protecting Children from Sexual Abuse from Those Entrusted with Their Care,”5 the authors, Alex Caballero and Ingrid Anderson, assert that the legislature did not intend to limit application of the KCSA only to children under Ch. 39. Rather, the authors maintain the KCSA should apply to all judicial determinations relating to visitation and contact with children. This author respectfully disagrees. Because the KCSA has not yet been the subject of any published appellate decisions, the publication of commentary may be of assistance to practitioners, and responsive arguments may encourage debate and improvement, whether in the statute itself or in the practice of law affected by it.6

By its own terms, the KCSA applies only to children with cases under Ch. 39. Any ambiguity concerning the application of the KCSA to cases other than Ch. 39 cases is eliminated by reference to the legislative history. Even if limited to Ch. 39 cases, the KCSA is too broad, including in an umbrella of sexually abused children those who may not be at risk of sexual abuse at all, while also providing sexual abuse services to children who have been victimized by abuse, or are at risk of abuse, that is not sexual. The KCSA must be revised substantially before it can be utilized appropriately to protect children who have been sexually abused. Once amended, it should apply to children under Ch. 39. To assure consistency, and in furtherance of the goals of the unified family court, it should also apply to any “related cases,” as those are defined in Florida Rule of Judicial Administration 2.545.

How the KCSA Operates Now: The Rebuttable Presumption of Detriment
In its effort to protect children who have been subjected to sexual abuse, the KCSA creates a rebuttable presumption of detriment to a child when a parent or caregiver has “been found guilty, regardless of adjudication, or has entered a plea of guilty or nolo contendere to” certain specified crimes7 or has been determined by a court to be a sexual predator.8 Some of the crimes that give rise to the presumption are crimes that always involve child victims. For example, the crime of removing a minor from the state or concealing a minor contrary to state agency order or court order under F.S. §787.04 is a crime that always involves a child victim. Most of the other crimes giving rise to the presumption of detriment under F.S. §39.0139(3)(a) may involve a child victim, but are not limited to crimes involving child victims. Thus, sexual battery under F.S. §794.011 may be perpetrated against a victim of any age. The crimes addressed in Ch. 800 and in F.S. §826.04 may involve child victims, but are not limited to crimes involving child victims.

Lewd and lascivious behavior under F.S. §798.02 is the crime which occurs when “a man and a woman, not being married to each other, lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, engages in open and gross lewdness and lascivious behavior.” That crime may not involve any particular “victim” at all. On the other hand, the conduct prohibited by Ch. 827 always involves a child victim or victims, but is not limited to sexual abuse, exploitation, or to sexual conduct of any kind.

It is not clear from F.S. §39.0139(3)(a) exactly how commission of one of the enumerated sexual crimes, whether or not the victim is a child, identifies the subject child as one who has “been sexually abused or exploited.” Likewise, the commission of a crime involving abuse of a child, whether or not the abuse is sexual, may logically place the subject child “at risk of suffering from further harm during visitation or other contact,” but it is not clear that the harm is the type targeted by the KCSA.

Under Ch. 39, sexual abuse of one child may be highly relevant to a determination that a sibling of that child is dependent or that parental rights for a sibling may be terminated.9 However, sexual abuse is not automatically dispositive of the issue of dependency of the sibling or of termination of parental rights.10 The Florida Supreme Court has said that in cases involving a parent’s prior sexual act on a different child a court may consider, among other things, the similarity between the prior act and the pending case and the temporal proximity of the prior act to the pending case.11 Generally, the law requires proof of a nexus between the abuse of one child and any prospective abuse to another child.12

In enacting the KCSA, the legislature has not amended grounds for dependency or termination of parental rights to delete the requirement of proof of a nexus in sexual abuse cases, yet it has departed entirely from the logic of existing law. Not only does the KCSA fail to provide for a nexus, it also imposes the rebuttable presumption of whether the prior victim is a child and whether the prior enumerated offense is sexual. The act does not take into consideration the temporal proximity or the similarity between the prior act and the pending case.

Furthermore, even if the parent or caregiver is not a sexual predator and has never been found guilty of or entered a plea of guilty or nolo contendere to any crime, the F.S. §39.0139(3)(a) rebuttable presumption of detriment can still arise. All the KCSA requires is that the parent or caregiver have “been the subject of a report to the child abuse hotline alleging sexual abuse of any child as defined in §39.01.”13 A report to the abuse hotline requires only that a person “knows, or has reasonable cause to suspect, that a child is abused….”14 There are no limitations as to date, and there is no requirement that the parent or caregiver have been an adult when the report was made. There is no requirement that the report be found to have been true, or even that it be subject to a finding of probable cause before the rebuttable presumption arises. A report that was made in the distant past and closed following an investigation with no indicators of abuse nevertheless triggers the application of the KCSA.

Once the rebuttable presumption of detriment arises, there is no visitation or contact between the parent or custodian and the child until after a hearing and an order by the court that allows the visitation or other contact.15 The court must appoint a guardian ad litem or attorney ad litem for the child, and the parent or custodian has the burden of proving “by clear and convincing evidence that the safety, well-being and physical, mental and emotional health of the child is not endangered by such visitation or other contact.”16 Thus, the effect of the rebuttable presumption is that the burden is placed on the parent or caregiver to show that the child is not in danger, and the burden is very great.

If the parent or caregiver is successful, the rebuttable presumption of detriment is overcome. If unsuccessful, the court must enter an order prohibiting or restricting visitation or other contact with the child, and any visitation or contact must be supervised by a person who has previously received special training in the dynamics of child sexual abuse or in a supervised visitation program provided that the program has “policies and guidelines specifically related to referrals involving child sexual abuse.”17

Thus, under the KCSA, if a parent was convicted of criminal child abuse of his or her child because he or she spirally fractured the child’s arm in anger, and if the parent was unable to rebut the presumption of detriment, the KCSA would require that parent’s visitations with the child, if any were ordered, to be supervised by a person who has previously received special training in the dynamics of child sexual abuse or at a supervised visitation program having policies and guidelines specially related to referrals involving child sexual abuse. Such a service might be both unnecessary because there is no risk of sexual abuse and ineffective because it might not insure child safety from the genuine threat that remains.

It is submitted that the KCSA is already too broad in its application because, on its face, it applies to cases to which its application is not intended. Furthermore, it does not offer services or assistance appropriate to the specific circumstances of the case, and every case is treated as a child sexual abuse case. Rather than being expanded to cases outside of Ch. 39, the KCSA must be revised and amended to apply under Ch. 39 to those sexually abused or exploited children who have been identified by the legislature as needing special protection.

KCSA Properly Applies by its Own Language to Cases Under Ch. 39
The terms “abandoned,” “abuse,” “neglect,” “harm,” “to have been abandoned, abused, or neglected by the child’s parent,” and “sexual abuse of a child” are all defined in F.S. §39.01 and have a meaning specific to Ch. 39. When those words, or forms of those words, are specifically and intentionally used in the KCSA, the meaning provided under Ch. 39 properly applies.

Significantly, Ch. 39 defines other operative terms. When those terms are “used in this chapter,” the meaning given in the Ch. 39 definition applies “unless the context otherwise requires.”18 Thus, when the word “court” is used under Ch. 39, as it is in the KCSA several times,19 “unless otherwise expressly stated,” it “means the circuit court assigned to exercise jurisdiction under” Ch. 39.20 The language does not mean the circuit court in general, or any other court.

Likewise, when the words “party” and “participant” are used in Ch. 39, as they are in the KCSA,21 they have the meaning given under F.S. §39.01, and not that which applies under Chs. 61, 63, or any other statute. A “party” under Ch. 39 includes the parent or parents, the petitioner, the Department of Children and Family Services, the guardian ad litem, or representative of the guardian ad litem program, when the program has been appointed, and the child.22 Under Ch. 61, only the husband and wife are parties unless a third party is joined for a specific purpose.23 The child is not a party under Ch. 61, nor is the guardian ad litem, if there is one. Different designations of parties apply to proceedings under Chs. 63, 741, 742, 751, and each of the other statutes where visitation and contact with a child might be ordered.

Other clear legislative intent is seen in the amendment of the visitation provisions. Ch. 39 was amended to require compliance with the KCSA and now mandates that “[a]ny order for visitation or other contact must conform to the provisions of §39.0139” was added to the section for visitation ordered at shelter, at arraignment, at disposition, and for grandparents under Ch. 39.24 No provision under Ch. 61 or any of the other family law statutes was amended to incorporate the requirement of compliance with the KCSA.

If the legislature intended to apply the KCSA to all judicial proceedings, then it would not have placed it in Ch. 39 while using terms defined uniquely in Ch. 39. Likewise, the legislature would not have amended specific visitation provisions of Ch. 39 while not amending other visitation provisions elsewhere in Florida Statutes. Therefore, the KCSA applies properly to cases under Ch. 39 and to any related cases.

History of Legislature’s Intent to Apply KCSA Only to Ch. 39 Cases
House Bill 77 and Senate Bill 20 are identical and were legislatively enacted as the KCSA. As discussed in the Caballero/Anderson article, both forms of the bill ultimately omitted prior references to “proceedings governed by” F.S. Ch. 39, and substituted the term “judicial determinations,” when referring to proceedings to establish visitation and contact with minor children. The authors assert that the modifications evidence a legislative intent that the KCSA apply beyond Ch. 39 proceedings. This theory is belied by the legislative analysis of the KCSA.

The Florida staff analysis to House Bill 7725 summarizes the application of the bill as follows: “the bill requires visitation ordered at a shelter hearing, an arraignment hearing, a disposition hearing … to follow these newly created requirements.” Those hearings occur only in proceedings under Ch. 39, and not in proceedings under Chs. 61, 63, 742, 751, or other family law cases in which visitation or contact is ordered. Nor are any other kinds of hearings addressed or identified. In the full analysis to House Bill 77, there is specific discussion of the right to visitation in shelter,26 arraignment,27 and disposition28 hearings under Ch. 39, and at hearings on grandparent visitation29 under Ch. 39.30 The only other statute discussed in the staff analysis is Ch. 753, which relates to supervised visitation programs. Thus, although Ch. 39 proceedings are discussed individually and at length, no provisions under any other family law statute in which visitation is or may be awarded are discussed or referenced at all.

In describing House Bill 77, the staff analysis states, “The bill provides for the ‘Keeping Children Safe Act of 2007’ and provides legislative intent to keep children in the custody of DCF or its contractors safe during visitation or other contact with an individual who is alleged to have committed sexual abuse or related criminal conduct.”31 Clearly, the legislature did not intend for the KCSA to apply outside of Ch. 39 proceedings.

Other Appropriate Remedies
In making a determination of shared parental responsibility and primary residence, the court under Ch. 61 is required to evaluate all factors affecting the welfare and interests of the child, including without limitation any evidence of child abuse and, in addition to a long list of factors, any other fact considered by the court to be relevant.32 Upon a finding of detriment to the child, the court can also order sole parental responsibility with or without visitation, or order visitation on such arrangements as are necessary to protect the child from harm.33

Certainly the court in a Ch. 61, or other family law proceeding, can enter an order which limits or even eliminates visitation and contact by a parent with a child in order to protect the child from abuse by the parent, whether sexual or otherwise. A trial court has broad discretion to restrict visitation when necessary to protect the welfare of the children, provided that restrictions on visitation must be supported by some evidence in the record showing that they are necessary.34 An order restricting or denying visitation or contact with a child may be temporary or permanent. The court’s authority also allows it to enter emergency orders for the protection of children in domestic relations cases.35 Upon a proper sworn petition, the court can enter an ex parte temporary injunction to protect a child from domestic violence or sexual violence. Without the mechanism of the rebuttable presumption created by the KCSA, the court can enter emergency orders when appropriate to protect a child, and can conduct emergency hearings and enter temporary and permanent orders containing necessary findings and factual determinations.

KCSA Requires Amendment to Fulfill Stated Purpose
The KCSA, in the form that became effective July 1, 2007, is flawed in several important respects. First, it is not clear whether the act should or should not apply to proceedings for visitation outside of Ch. 39. This article has advocated that it does not. Caballero and Anderson advocated that it does and should. A legislative amendment is needed to clarify that point.

The second area the legislature is encouraged to consider is the rebuttable presumption of detriment created by a hotline abuse report. In order to avoid the concern suggested by the authors in the previous article that “the statute is subject to being abused in a dissolution of marriage setting or a domestic violence setting by a parent making a call to the child abuse hotline,”36 the KCSA should be amended to require, instead, at least a finding of probable cause to believe that the parent or caregiver has committed an act of sexual abuse against a child.37

Finally, consideration should be given to the list of Florida criminal statutes and “substantially similar” crimes from other states that give rise to the rebuttable presumption of detriment. Removing minors from the state or concealing minors contrary to court order may or may not be related to sexual abuse or exploitation of a minor or minors.38 Child abuse under Ch. 827 may or may not be related to sexual abuse or exploitation of a minor or minors. Crimes under F.S. §§794.011, 798.02, 800, and 826.04 are sexual in nature but may or may not involve a minor or minors. Consideration should be given to amending the provisions of F.S. §39.0139(3)(a)2 to provide “Has been found guilty of, regardless of adjudication, or has entered a plea of guilty or nolo contendere to, a charge charges under any of the following statutes or substantially similar statutes of other jurisdictions, where the crime charged is a sexual crime or a sexually motivated crime and the victim is a person under 18 years of age.

The KCSA provides protection for children who have been abused, abandoned, or neglected, and specifically for children who have been victims of sexual abuse or exploitation by their own parent or caregiver. It is a Ch. 39 provision and appropriately limited to Ch. 39 cases and any related cases. If other kinds of cases are intended to be covered by the KCSA, then it must be revised to clearly reflect that intention. The goal of the KCSA, to protect children and reduce the risk of further harm to children who have been sexually abused or exploited by a parent or other caregiver, is a laudable one. However, the KCSA is written so broadly that the act includes children who have been abused nonsexually and children who may not be at substantial risk of sexual abuse. Statutory revisions are needed in order to better fulfill the statutory purpose.

1 Fla. Stat. §39.0139(2)(b) (2007).

2 Fla. Stat. §39.0139(2)(a) (2007).

3 Fla. Stat. §39.0139(3)(a) (2007).

4 Fla. Stat. §39.0139(2)(b) (2007).

5 Alex Caballero and Ingrid Anderson, Florida Statute 39.0139: Protecting Children from Sexual Abuse from Those Entrusted with Their Care, 83 Fla. B. J. 59 (March 2008).

6 There is, of course, much about the Caballero/Anderson article and about the KCSA itself with which the author personally agrees and supports.

7 Fla. Stat. §39.0139(3)(a)(2) (2007).

8 Fla. Stat. §39.0139(3)(a)(3) (2007).

9 In re M.F., 770 So. 2d at 1192, 1194 (Fla. 2000).

10 Id. at 1194.

11 Id. at 1194 fn. 13.

12 In re C.R. 937 So. 2d 1257, 1262 -1263 (Fla. 2d D.C.A. 2006); O.S. v. DCF, 821 So. 2d 1145 (Fla. 4th D.C.A. 2002); D.H. v. DCF, 769 So. 2d 424 (Fla. 4th D.C.A. 2000).

13 Fla. Stat. §39.0139(3)(a)(1) (2007).

14 Fla. Stat §39.201(1)(a) (2007).

15 Fla. Stat. §39.0139(4) (2007).

16 Id.

17 Fla. Stat. §39.0139(4)(c ), (d), and (5)(a) (2007).

18 Fla. Stat. §39.01 (2007).

19 Fla. Stat. §39.0139(4)(a),(b),(c),(d); (5)(b); (6)(a),(b) (2007).

20 Fla. Stat. §39.01(19) (2007).

21 Fla. Stat. §39.0139(6)(a) (2007).

22 Fla. Stat. §39.01(50) (2007).

23 See, e.g., Fla. Stat. §61.021 (2007).

24 Fla. Stat. §§39.402(9), 39.506(6), 39.509, 39.521(3)(d) (2007).

25 Staff Analysis, H.B. 77 (February 14, 2007), Florida House of Representatives, 2007 Regular Session.

26 Fla. Stat. §39.402(9) (2007).

27 Fla. Stat. §39.506(6) (2007).

28 Fla. Stat. §39.521 (2007).

29 Fla. Stat. §39.509 (2007).

30 Id.

31 Id. (emphasis added).

32 Fla. Stat. §61.13(3)(l) and (m) (2007).

33 Fla. Stat. §61.13(2)(b) (2007).

34 Coyne v. Coyne, 895 So. 2d 469, 473 (Fla. 2d D.C.A. 2005).

35 See, e.g., E.Z.P. v. H.P., 756 So. 2d 188 (Fla. 3d D.C.A. 2000) ( father alleged to have sexually abused and exploited the child had no visitation and was enjoined from contact with the child).

36 Caballero & Anderson, Florida Statute 39.0139: Protecting Children from Sexual Abuse from Those Entrusted with Their Care, 83 Fla. B. J. at 61, n. 5 (March 2008).

37 One provision of existing law has language which is comparable to portions of the KCSA and would be instructive concerning a proposed amendment. In awarding grandparent visitation, the court is required under §39.509(6)(c ) to consider any abuse report and the “outcome of the investigation concerning such report.”

38 The author in no way disagrees that being found guilty of this or any of the enumerated offenses should be a factor to consider in determining whether there is detriment to a child. The author questions whether that concern would always lead to a requirement, for example, that visitation by the guilty parent should be supervised by someone with specialized training in sexual abuse if the crime is not sexual in nature. Likewise, if a parent has committed a sex crime only against an adult, the treatment or intervention response might be very different than that for a perpetrator who targets, for example, only prepubescent children.

Judge Sue Robbins is the family law administrative judge for the Fifth Circuit and hears primarily dependency, termination of parental rights, adoption, and related cases. She is active in dependency court improvement and serves on several statewide family law committees. She has been a member of the judiciary since 2000.

This column is submitted on behalf of the Family Law Section, Allyson Hughes, chair, and Susan W. Savard and Laura Davis Smith, editors.

[Revised: 02-10-2012]