Proposed Florida Children’s Legal Representation Act
PROPOSED FLORIDA CHILDREN’S LEGAL REPRESENTATION ACT
Note: Words underlined are additions; words
stricken are deletions.
28.24 Service charges by clerk of the circuit court. –The clerk of the circuit court shall charge for services rendered by the clerk’s office in recording documents and instruments and in performing the duties enumerated in amounts not to exceed those specified in this section. Notwithstanding any other provision of this section, the clerk of the circuit court shall provide without charge to the state attorney, public defender, guardian ad litem, public guardian, attorney ad litem or attorney for a child pursuant to chapters 39, 61, 63, 393, 394, 397, 731,741, 742, 914, 984 and 985, criminal conflict and civil regional counsel, and private court-appointed counsel paid by the state, and to the authorized staff acting on behalf of each, access to and a copy of any public record, if the requesting party is entitled by law to view the exempt or confidential record, as maintained by and in the custody of the clerk of the circuit court as provided in general law and the Florida Rules of Judicial Administration. The clerk of the circuit court may provide the requested public record in an electronic format in lieu of a paper format when capable of being accessed by the requesting entity.
39.001 Purposes and intent; personnel standards and screening. —
(3) GENERAL PROTECTIONS FOR CHILDREN.–It is a purpose of the Legislature that the children of this state be provided with the following protections:
(i) Promotion and protection of their legal rights.
39.0016 Education of abused, neglected, and abandoned children; agency agreements; children having or suspected of having a disability. —
(5) If requested, the court may appoint a guardian ad litem or an attorney for the child in school matters, including disciplinary actions and issues relating to Exceptional Student Education.
39.01 Definitions. –When used in this chapter, unless the context otherwise requires:
(9) “Attorney for the child” means an attorney who provides direct legal representation to a child.
(51) “Party” means the parent or parents of the child, the petitioner, the department, the guardian ad litem or the representative of the guardian ad litem program when the program has been appointed, and the child
The presence of the child may be excused by order of the court when presence would not be in the child’s best interest. Notice to the child may be excused by order of the court when the age, capacity, or other condition of the child is such that the notice would be meaningless or detrimental to the child.
39.407 Medical, psychiatric, and psychological examination and treatment of child; physical, mental, or substance abuse examination of person with or requesting child custody.—
…< p>(6) Children who are in the legal custody of the department may be placed by the department, without prior approval of the court, in a residential treatment center licensed under s. 394.875 or a hospital licensed under chapter 395 for residential mental health treatment only pursuant to this section or may be placed by the court in accordance with an order of involuntary examination or involuntary placement entered pursuant to s. 394.463 or s. 394.467. The court must appoint an attorney for each child prior to placement in a residential treatment program. All children placed in a residential treatment program under this subsection must have a guardian ad litem appointed. < p>…
(c) … A copy of the written findings of the evaluation and suitability assessment must be provided to the department and to the guardian ad litem and attorney for the child, who shall have the opportunity to discuss the findings with the evaluator.
(d) Immediately upon placing a child in a residential treatment program under this section, the department must notify the guardian ad litem, attorney for the child, and the court having jurisdiction over the child and must provide the guardian ad litem, attorney for the child and the court with a copy of the assessment by the qualified evaluator.< p>(e) Within 10 days after the admission of a child to a residential treatment program, the director of the residential treatment program or the director’s designee must ensure that an individualized plan of treatment has been prepared by the program and has been explained to the child, to the department, to the attorney for the child, and to the guardian ad litem, and submitted to the department. The child must be involved in the preparation of the plan to the maximum feasible extent consistent with his or her ability to understand and participate,
(f)1. The department shall fully inform the court of the child’s medical and behavioral status as part of the social services report prepared for each judicial review hearing held for a child for whom psychotropic medication has been prescribed or provided under this subsection. As a part of the information provided to the court, the department shall furnish copies of all pertinent medical records concerning the child which have been generated since the previous hearing. On its own motion or on good cause shown by any party, including any guardian ad litem, or attorney for the child who has been appointed to represent the child or the child’s interests, the court may review the status more frequently than required in this subsection.
39.4085 Legislative findings and declaration of intent for goals for dependent children.
…< p>(20) To have a guardian ad litem appointed to represent,
39.502 Notice, process, and service.—< p>(12) All process and orders issued by the court shall be served or executed as other process and orders of the circuit court and, in addition, may be served or executed by authorized agents of the department, attorney for the child or the guardian ad litem. < p>(13) Subpoenas may be served within the state by any person over 18 years of age who is not a party to the proceeding and, in addition, may be served by authorized agents of the department, attorney for the child or the guardian ad litem. < p>39.801 Procedures and jurisdiction; notice; service of process.— < p>(3) Before the court may terminate parental rights, in addition to the other requirements set forth in this part, the following requirements must be met: < p>(a) Notice of the date, time, and place of the advisory hearing for the petition to terminate parental rights and a copy of the petition must be personally served upon the following persons, specifically notifying them that a petition has been filed: < p>1. The parents of the child. < p>2. The legal custodians of the child. < p>3. If the parents who would be entitled to notice are dead or unknown, a living relative of the child, unless upon diligent search and inquiry no such relative can be found. < p>4. Any person who has physical custody of the child. < p>
Chapter 39, Part XIV Child’s Right to Participate and Be Represented an Attorney < p>39.920 Participation in Proceedings < p>(1) Each child who is the subject of a Chapter 39 proceeding has the right to attend, be represented and fully participate in all hearings related to his or her case and to be informed of these rights. < p>(2) Each child shall receive notice from the child welfare agency worker and the child’s attorney of his or her right to attend the court hearings. < p>39.921 Right to Be Represented an Attorney < p>(1) Recognizing that all children in the custody of the state enjoy individual dignity, liberty, pursuit of happiness, and the protection of their civil and legal rights, a child who is the subject of a petition brought pursuant to this chapter shall have the right to be to be represented by his or her own attorney at all stages of these proceedings and to be informed of this right. < p>(2) No child shall be denied the right to be represented by his or her own attorney at all stages of these proceedings. < p> (3) The Legislature requests that the Florida Supreme Court adopt a rule to address the qualifications, training, continuing legal education and standards of practice for attorneys representing children. < p>39.922 Access to Child and Information Relating to Child
(2) The child’s attorney shall have access to:
- (a) the child; and
(b) confidential information regarding the child, including the child’s educational, medical, and mental health records, responsible social services agency files, court records including court files involving allegations of abuse or neglect of the child, any delinquency records involving the child, and other information relevant to the issues in the proceeding, and screenings, assessments, evaluations, and reports.
Ch. 39.923 Appointment of Attorney in Critical Cases :
(1) To the extent that Florida has limited resources, it is nonetheless the intent of the Florida Legislature that children in the following circumstances, as described in subparts (a) through (g) below, at a minimum, shall be appointed attorneys pursuant to Section 43.50:
(a) Has been continuously in out of home care, as measured from initial entry into shelter care, for more than one year, and
1. where the department has not filed a termination of parental rights petition for that child or where there has been a termination of parental rights and the child has been in out of home care, as measured from the initial entry into shelter care, for more than 18 months; and
2. The child has not been either returned to the custody of his or her parents or has been placed pursuant to section 39.621;
(b) Is the subject of a proceeding in which the state is seeking to administer or continue to administer psychotropic medication;
(c) Has, or is suspected of having a developmental disability as defined in Chapter 393, unless an attorney in the Guardian Ad Litem office is representing the child in Chapter 393 proceedings;
(d) Is subject to commitment or placement of the child for longer than 72 hours to a secure residential treatment facility, including those licensed under Chapters 393, 394 and 397;
(e) Is a child at least sixteen years of age in out of home care who is determined by the court to require legal representation under section 39.701, or in seeking assistance from the government, including as an adult, pursuant to section 39.013(2) or 409.1451;
(f) Being a child who is of sufficient intelligence, understanding, and experience disagrees with or conflicts with the Guardian ad Litem’s interpretation of that child’s best interests; or
(g) Is the subject of a proceeding in which waiver of the child’s psychotherapist-patient privilege is at issue.
(2) The court may appoint an attorney for the child at any point in any chapter 39 proceeding on its own motion or on the motion of any other party to the proceeding
(a) if the court finds that the child’s interests are not being protected in the proceedings;
(b) if the child asks for an attorney; or
(c) in school matters, including disciplinary actions and issues relating to Exceptional Student Education.
(3) The appointment of an attorney must be made as soon as practicable to ensure effective representation of the child and, in any event, before the next court hearing when the child is entitled to an attorney.
(4) The court may appoint one attorney to represent siblings so long as there is no conflict of interest.
(5) An order of appointment of a child’s attorney shall be in writing.< p>(6) An appointment of a child’s attorney continues in effect until the attorney is discharged by court order or the case is dismissed. The appointment includes all stages thereof, from removal from the home or initial appointment through all available appellate proceedings. The attorney may, with the permission of the court, arrange for supplemental or separate counsel to handle proceedings at an appellate stage. < p>(7) Nothing in this Section shall be interpreted to interfere with the ability of the court to appoint an attorney for any child in a Chapter 39 proceeding for any reason, nor in any way limit a child’s right to counsel. This Section shall not be interpreted to preclude an attorney from appearing on behalf of a child.
43.50 Short title.–This act may be cited as the “Florida Children’s Legal Representation Act.”
43.51 Legislative intent.–It is the intent of the Legislature to establish an administrative framework whereby public funds may be used in an effective and efficient manner to enhance and ensure the availability of legal representation of children subject to proceedings under chapters 39, 61, 63, 393, 394, 397, 731,741, 742, 914, 984 and 985 in this state. The Legislature finds that adequate legal representation for children subject to those proceedings will have the effect of improving the outcomes of those proceedings and expediting those proceedings where the passage of time is inherently prejudicial to the children’s best interests.
43.52 Authority and duties of the Commission.–The Justice Administrative Commission shall have the powers necessary or appropriate to carry out the purposes and provisions of this act, including, but not limited to, the power to contract with not-for-profit or charitable organizations to provide legal representation of children under chapters 39, 61, 63, 393, 394, 397, 731,741, 742, 914, 984 and 985 in this state and to allocate funds to those organizations consistent with the provisions of this act.
- (1) (a) In connection with funds appropriated pursuant to this act, the Justice Administrative Commission shall either:
(i) contract with not-for-profits or charitable organizations that meet the qualifications of s. 501(c)(3) of the United States Internal Revenue Code, as amended, for the administration, allocation and distribution of any or all such funds in a manner consistent with the provisions of this act and to provide legal representation to children who are entitled to appointment of legal counsel pursuant to the provisions of chapter 39. Such contacts shall provide that the organization receiving funds arrange for qualified attorneys to render legal representation to those children, that the organization endeavor to recruit, train and maximize use of pro bono attorneys as an additional source of legal representation for children. Such contracts may be entered into with as many organizations as are necessary to provide legal representation for children subject to proceedings under chapters 39, 61, 63, 393, 394, 397, 731,741, 742, 914, 984 and 985 in each judicial circuit of the state. Such contracts may be entered into with existing organizations described in subparagraph (b), with other organizations that provide not-for-profit child advocacy and legal services, and with public defender’s offices, in order to expand the case load that those organizations can sustain where present service levels are not sufficient to meet the anticipated load of cases for which children are entitled to appointed counsel under chapters 39, 61, 63, 393, 394, 397, 731,741, 742, 914, 984 and 985. Funds shall be apportioned as equitably as practical among the contracting organizations based on the relative case load expected and taking into account the availability of other sources of legal representation for children in particular geographic areas as identified in subparagraph (b); or
(ii) contract with a not-for-profit, charitable organization that meets the qualifications of s. 501(c)(3) of the United States Internal Revenue Code, as amended, that provides funding statewide for civil legal assistance to the poor for the administration, allocation, and distribution of any or all such funds to not-for-profit legal aid organizations whose primary purpose is to provide civil legal services without charge to eligible clients to provide court-appointed legal representation of children subject to proceedings under chapters 39, 61, 63, 393, 394, 397, 731,741, 742, 914, 984 and 985 in each judicial circuit of the state.
- (b) The entity responsible for the dissemination of funds to non-profits or charitable organizations under subsection (a) above must:
(i) Designate one entity in each judicial circuit to serve as the “Children’s Legal Representation Coordinator” for the circuit; and
(ii) Actively encourage fund applicants to seek additional sources of revenue to supplement state funds for the provision of counsel to children, including local children’s services councils, foundations, local governmental entities.
(c) The Legislature recognizes that there already exist organizations that provide attorney representation to children in certain jurisdictions throughout the state. Some of these organizations have been proven effective through independent rigorous evaluation in producing significantly improved outcomes for children and have been embraced by their local jurisdictions. The Legislature therefore does not intend in any way that organizations funded under this act supplant proven and existing organizations for representing children. Instead, the Legislature intends that such organizations funded under this act be an additional source for the representation of more children in these jurisdictions to the extent necessary to meet the requirements of chapter 39 and with the cooperation of the existing local organizations or through expansion of those organizations. Furthermore, this Act is intended to encourage the expansion of pro bono representation for children and in no way shall be interpreted to limit the ability of a pro bono attorney to appear on behalf of a child.
- (d) The Justice Administrative Commission shall administer the contracts under this subsection and evaluate the performance of the organizations that provide attorneys for children in a manner that in no way interferes with the discharge of professional responsibilities in representing the children.
43.54 Eligible activities. –Funds received or allocated pursuant to this act may be used to secure legal representation for children entitled to an attorney under chapters 39, 61, 63, 393, 394, 397, 731,741, 742, 914, 984 and 985.
43.55 Accountability. –In any contract allocating funds pursuant to this act, the Justice Administrative Commission shall ensure that funds received or allocated pursuant to this act are expended in a manner consistent with the terms and intent of this act and shall provide for an annual audit of such expenditures.
43.56 State support. –Programs funded pursuant to this act shall be eligible for state support, including, but not limited to, access to the SUNCOM Network services. Accounts for SUNCOM services furnished to program eligible entities shall be billed directly to the Justice Administrative Commission, as program administrator, and paid with the funding provided.
61.401 Appointment of guardian ad litem and attorney for the child . —
In an action for dissolution of marriage or for the creation, approval, or modification of a parenting plan, if the court finds it is in the best interest of the child, the court may appoint a guardian ad litem to act as next friend of the child, investigator or evaluator, not as attorney or advocate. Nothing in this Section shall preclude a duly licensed Florida attorney who is appointed as a guardian ad litem from serving as an attorney for him or herself, as guardian ad litem, in the same proceedings. The court in its discretion may also appoint legal counsel for a child to act as attorney or advocate; however, the guardian and the
legal counsel attorney for the child shall not be the same person. In such actions which involve an allegation of child abuse, abandonment, or neglect as defined in s. 39.01, which allegation is verified and determined by the court to be well-founded, the court shall appoint a guardian ad litem for the child. The guardian ad litem shall be a party to any judicial proceeding from the date of the appointment until the date of discharge.
63.142 Hearing; judgment of adoption. —
(1) APPEARANCE.–The petitioner and the person to be adopted shall appear either in person or, with the permission of the court, telephonically before a person authorized to administer an oath at the hearing on the petition for adoption, unless:< p>(a) The person is a minor under 12 years of age; or < p>(b) The appearance of either is excused by the court for good cause. < p>(2) Appointment of an attorney for the child – The court may appoint an attorney for the child as defined in ch. 39.01(9) if the court finds that the child’s interests are not being adequately protected, if the child requires legal advocacy, or if there are complex legal issues involved in the case.
*Subsequent subsections renumbered.< p>393.125 Hearing rights.— < p>(1) REVIEW OF AGENCY DECISIONS.– < p>(a) Any developmental services applicant or client, or his or her parent, guardian, guardian advocate, or authorized representative, who has any substantial interest determined by the agency, has the right to request an administrative hearing pursuant to ss. 120.569 and 120.57. < p>(b) Notice of the right to an administrative hearing shall be given, both verbally and in writing, to the applicant or client, and his or her parent, guardian, guardian advocate, or authorized representative, or attorney for the child as defined in ch. 39.01(9) at the same time that the agency gives the applicant or client notice of the agency’s action. The notice shall be given, both verbally and in writing, in the language of the client or applicant and in English. < p>(c) A request for a hearing under this section shall be made to the agency, in writing, within 30 days of the applicant’s or client’s receipt of the notice. < p>(d) The court, magistrate, administrative law judge or hearing officer shall appoint an attorney for the child as defined in ch. 39.01(9) if the court, magistrate, administrative law judge or hearing officer finds that the child’s legal interests are not being adequately protected, if the child requires legal advocacy, or if there are complex legal issues involved in the case. This appointment may be made through the governmental entity or contracted organization providing attorneys for children pursuant to chapter 39, 61, 63, 393, 394, 397, 731, 741, 742, 914, 984 and 985. < p>394.463 Involuntary examination.— < p>1) CRITERIA.–A person may be taken to a receiving facility for involuntary examination if there is reason to believe that the person has a mental illness and because of his or her mental illness: < p>(a)1. The person has refused voluntary examination after conscientious explanation and disclosure of the purpose of the examination; or < p>2. The person is unable to determine for himself or herself whether examination is necessary; and < p>(b)1. Without care or treatment, the person is likely to suffer from neglect or refuse to care for himself or herself; such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; and it is not apparent that such harm may be avoided through the help of willing family members or friends or the provision of other services; or < p>2. There is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future, as evidenced by recent behavior. < p>(c) If the person to be taken to a receiving facility is a minor child, the court shall appoint an attorney for the child as defined in ch. 39.01(9) if the court finds that the child’s legal interests are not being adequately protected, if the child requires legal advocacy, or if there are complex legal issues involved in the case. This appointment may be made through the governmental entity or contracted organization providing Attorneys for children pursuant to chapter 39, 61, 63, 393, 394, 397, 731, 741, 742, 914, 984 and 985. < p>397.681 Involuntary petitions; general provisions; court jurisdiction and right to counsel.— < p>(1) JURISDICTION.–The courts have jurisdiction of involuntary assessment and stabilization petitions and involuntary treatment petitions for substance abuse impaired persons, and such petitions must be filed with the clerk of the court in the county where the person is located. The chief judge may appoint a general or special magistrate to preside over all or part of the proceedings. The alleged impaired person is named as the respondent. < p>(2) RIGHT TO COUNSEL.–A respondent has the right to counsel at every stage of a proceeding relating to a petition for his or her involuntary assessment and a petition for his or her involuntary treatment for substance abuse impairment. A respondent who desires counsel and is unable to afford private counsel has the right to court-appointed counsel and to the benefits of s. 57.081. If the court believes that the respondent needs the assistance of counsel, the court shall appoint such counsel for the respondent without regard to the respondent’s wishes. If the respondent is a minor not otherwise represented in the proceeding, the court shall immediately appoint a guardian ad litem to act on the minor’s behalf. < p>(3) RIGHT TO COUNSEL OF MINORS – The court shall appoint an attorney for a child as defined in ch. 39.01(9) if the court finds that the child’s legal interests are not being adequately protected, if the child requires legal advocacy, or if there are complex legal issues involved in the case. This appointment may be made through the governmental entity or contracted organization providing Attorneys for children pursuant to chapter 39, 61, 63, 393, 394, 397, 731, 741, 742, 914, 984 and 985. < p>731.303 Representation.–In the administration of or in judicial proceedings involving estates of decedents, the following apply: < p>… < p>(4) If the court determines that representation of the interest would otherwise be inadequate, the court may, at any time, appoint a guardian ad litem to represent the interests of an incapacitated person, an unborn or unascertained person, a minor or any other person otherwise under a legal disability, or a person whose identity or address is unknown. If not precluded by conflict of interest, a guardian ad litem may be appointed to represent several persons or interests. The court shall appoint an attorney for the child as defined in ch. 39.01(9) if the court finds that the child’s legal interests are not being adequately protected, if the child requires legal advocacy, or if there are complex legal issues involved in the case. This appointment may be made through the governmental entity or contracted organization providing Attorneys for children pursuant to chapter 39, 61, 63, 393, 394, 397, 731, 741, 742, 914, 984 and 985. < p>741.2902 Domestic violence; legislative intent with respect to judiciary’s role.— < p>(2) It is the intent of the Legislature, with respect to injunctions for protection against domestic violence, issued pursuant to s. 741.30, that the court shall: < p>(a) Recognize that the petitioner’s safety may require immediate removal of the respondent from their joint residence and that there can be inherent danger in permitting the respondent partial or periodic access to the residence. < p>(b) Ensure that the parties have a clear understanding of the terms of the injunction, the penalties for failure to comply, and that the parties cannot amend the injunction verbally, in writing, or by invitation to the residence. < p>(c) Ensure that the parties have knowledge of legal rights and remedies including, but not limited to, visitation, child support, retrieving property, counseling, and enforcement or modification of the injunction. < p>(d) Consider temporary child support when the pleadings raise the issue and in the absence of other support orders. < p>(e) Consider supervised visitation, withholding visitation, or other arrangements for visitation that will best protect the child and petitioner from harm. < p>(f) Consider appointment of an attorney for the child as defined in ch. 39.01(9) if the child is an alleged victim or accused perpetrator of domestic violence when a permanent injunction is sought. This appointment may be made through the governmental entity or contracted organization providing attorneys for children pursuant to chapter 39, 61, 63, 393, 394, 397, 731, 741, 742, 914, 984 and 985. < p>*Renumber subsequent subsections. < p>
742.031 Hearings; court orders for support, hospital expenses, and attorney’s fee.— < p>(1) (a) Hearings for the purpose of establishing or refuting the allegations of the complaint and answer shall be held in the chambers and may be restricted to persons, in addition to the parties involved and their counsel, as the judge in his or her discretion may direct. The court shall determine the issues of paternity of the child and the ability of the parents to support the child. Each party’s social security number shall be recorded in the file containing the adjudication of paternity. If the court finds that the alleged father is the father of the child, it shall so order. If appropriate, the court shall order the father to pay the complainant, her guardian, or any other person assuming responsibility for the child moneys sufficient to pay reasonable attorney’s fees, hospital or medical expenses, cost of confinement, and any other expenses incident to the birth of the child and to pay all costs of the proceeding. Bills for pregnancy, childbirth, and scientific testing are admissible as evidence without requiring third-party foundation testimony, and shall constitute prima facie evidence of amounts incurred for such services or for testing on behalf of the child. The court shall order either or both parents owing a duty of support to the child to pay support pursuant to s. 61.30. The court shall issue, upon motion by a party, a temporary order requiring child support pursuant to s. 61.30 pending an administrative or judicial determination of parentage, if there is clear and convincing evidence of paternity on the basis of genetic tests or other evidence. The court may also make a determination of an appropriate parenting plan, including a time-sharing schedule, in accordance with chapter 61. < p>(b) The court may appoint an Attorney for the child as defined in ch. 39.01(9) if the court finds that the child’s legal interests are not being adequately protected, if the child requires legal advocacy, or if there are complex legal issues involved in the case. This appointment may be made through the governmental entity or contracted organization providing attorneys for children pursuant to chapter 39. < p>914.17 Appointment of advocate for victims or witnesses who are minors or persons with mental retardation.— < p>(1) A guardian ad litem or attorney for the child