SHELTER BASICSJudge Sue Robbins

Circuit Judge, Fifth Circuit, Marion County

INTRODUCTION TO APPLICABLE STATE AND FEDERAL LAWASFA (42 USC Secs. 620-632, 670-679) – the

Adoption and Safe Families Act45 CFR Secs 1355, 1356, and 1357 – Title IV-

E Contrary to the welfare findings must be

continued in the first order that removes the child from the home

Reasonable efforts to prevent removalWritten findings

INTRODUCTION TO APPLICABLE STATE AND FEDERAL LAWSec. 39.401, Fla. Stat. – taking a child into

custodySec. 39.402, Fla. Stat. – placement in shelter,

conducting shelter hearing, written order65C-30.009-30.012 Services to prevent

removal; removal and shelter; services following removal

When Does Shelter Occur?Case Begins With Shelter

Shelter petition filed before removal

Hearing must take place within 24 hours of removal. Sec. 39.401(3) and Sec. 39.402(8)

Shelter petition filed after removal

Dependency petition filed within 21 days (7 days)

Arraignment hearing within 28 days (7 days from DP)

“Direct File” DependencyDependency petition filedShelter petition filed in

existingcase – before or after adjudication of dependency, before or after removal Hearing must take place within 24 hours of removal. Sec. 39.401(3) and Sec. 39.402(8)

Arraignment within reasonable time if child not removed first

Closed case?

Sec. 39.401 – A child may be taken into custody by DCF or LEOOn sworn testimony before or after petitionOnly if PC that child has been

Abused abandoned or neglected –OR-Suffering from or imminent danger of illness or

injury from same –OR-Parent or legal custodian materially violated a

condition of placement – OR-No parent, LC, or responsible adult relative

immediately known and available

Sec. 39.401 – If a child is taken into custody by LEO, LEO “shall” release child to:Parent or LCResponsible adult approved by court (?)Responsible adult relative or adoptive parent

of child’s sibling (given priority when in BI’s)Responsible adult approved by the DCFDCF – Give sufficient info to establish “PC

that child has been abandoned, abused or neglected or otherwise dependent”

Sec. 39.401 – If a child is taken into custody by or delivered to DCF:DCF agent (CPI) must review the facts

supporting removal with DCF attorney, to determine “PC for filing a shelter petition”

If facts not sufficient, immediately return child

If sufficient, file petition, schedule hearing, request hearing within 24 hours

Make placement in meantime – if not licensed shelter then “must be preceded by criminal records check”

Contrast Sec. 39.401(3) and 39.402(8)Sec. 39.401(3) requires review with attorney

to determine PC Sec. 39.402(8) expressly provides that “in the

interval until the shelter hearing is held, the decision to place the child in a shelter or release the child from a shelter lies with the protective investigator.”

Contrast Sec. 39.401(5) and 39.402(8)Sec. 39.401(5) requires that judicial review

and approval of the decision to take a child into custody “is required within 24 hours after placement for all nonrelative placements”

Sec. 39.402(8)(a) requires that “a child may not be held in a shelter longer than 24 hours unless an order so directing is entered by the court after a shelter hearing”

Sec. 39.402(1) A child who has been taken into custody:May not be placed into a shelter prior to a

court hearing unless there is PC Child is abused abandoned or neglected –OR-Child is suffering from or imminent danger of

illness or injury from same –OR-Parent or legal custodian materially violated a

condition of placement – OR-No parent, LC, or responsible adult relative

immediately known and available

What’s a “shelter”?Sec. 39.01(68) “Shelter” means a placement

with a relative or a nonrelative, or in a licensed home or facility, for the temporary care of a child who is alleged to be or who has been found to be dependent, pending court disposition before or after adjudication.

What is “PC” as used in Sec. 39.402?Probable cause is “a reasonable ground for

suspicion, or knowledge of facts and circumstances which would warrant an individual of reasonable caution in believing that an offense had been committed.” Cross v. State, 432 So.2d 780, 782 (Fla. 3d DCA 1983), cited in In re BB, 820 So.2d 409, 413 n. 5 (Fla. 3rd DCA 2002) (emphasis added)

Juv. Rule 8.305The court shall conduct an informal hearing

within the time period required by lawThe court shall determine at the hearing the

existence of PC to believe the child is dependent and the other criteria

PC shall be determined in a non-adversarial manner applying the standard necessary for an arrest warrant

At the hearing all interested persons shall have the right to be heard and present evidence “on the criteria for placement”

Reversible error not to allow parent to present evidence at shelter on PC of dependencyParent has statutory right to contest PC at

shelter. AMT v. State, 883 So. 2d 302 (Fla. 1st DCA 2004)

Error to deny request of parent to present evidence on the issue of PC LMC v. DCF, 935 So. 2d 47 (Fla. 5th DCA 2006)

No matter what you call it, parents have the right to put on evidence and to argue not only placement issues but PC at shelter. JB v. DCF, 936 So. 2d 665 (Fla. 5th DCA 2006)

PC must be based on law and must be based on credible facts – not automaticChild’s allegations that mother pushed child on

bed, pulled hair, made a motion to hit child, and called child a name NOT sufficient for PC (an individual of reasonable caution would not have believed). Spano v. DCF, 820 So. 2d 409 (Fla. 3d DCA 2002)

Substance exposed infant not PC as to older sibling. ML v. DCF, 942 So. 2d 977 (Fla. 4th DCA 2006)

Homeless mom, living with friend, child sexually abused by neighbor. No PC. PU v. DCF, 24 So. 3d 706 (Fla. 4th DCA 2009)

PC/Shelter ProceduresAt shelter hearing, to continue child in shelter

care, DCF must:Establish PC that reasonable grounds for

removal existAnd that appropriate and available services

will not eliminate the need for placementSec. 39.402(8)(d). The parents have the right to

be heard on these issues. LMB v. DCF, 28 So. 3d 217 (Fla. 4th DCA 2010).

PC/Shelter ProceduresTo order placement, the Court mustDetermine that placement in shelter is

necessary based on the criteria of Secs. (1) and (2) of Sec. 39.402. Sec. 39.402(8)(h)1.

And also find that placement in shelter care is in the best interest of the child. Sec. 39.402(8)(h)2. The parents have the right to be heard on all these issues. LMB v. DCF, 28 So. 3d 217 (Fla. 4th DCA 2010).

Even if the judge really wants to…It is reversible error for the judge to sua sponte

order placing the child in shelter care without proper notice to the parents and opportunity to be heard on the matters required to be addressed at shelter. LT v. DCF, 28 So. 3d 978 (Fla. 3d DCA 2010).

The petition for shelter must contain:(1) name, address, date of birth, and sex of the child or, if

unknown, a description(2) name and address, if known, of the child's parents or legal

custodian and how each was notified of the shelter hearing;(3) if the child has been removed from the home, the date and

time of the removal;(4) that the child is of an age subject to the jurisdiction of the

court;(5) the reasons the child needs to be placed in a shelter;(6) the reasonable efforts, if any, that were made by the DCF to

prevent or eliminate the need for the removal of the child from the home or, if no such efforts were made, a description of the emergency that prevented these efforts;

(7) recommend where the child is to be placed or the agency to be responsible for placement; and

(8) be signed by the petitioner and, if represented by counsel, by the petitioner's attorney.

Required Notice to ParentsNotice as best ensures their actual

knowledge of the date, time and place of the shelter hrg

Even if outside of jurisdiction or if unknown or if unlocatable – notice as best ensures actual knowledge

Person giving notice must advise the courtParents get written notice of opportunity to

be heard and present evidence; right to counsel

Right to CounselApplies at shelter and at each subsequent

hearing under Sec. 39.013Court may continue shelter for 72 hours to

allow parents to consult with counsel if parents request

Kids stay in shelter placement if continuance is granted

At the shelter hearing, the DCF must also provide the Court:Copies of any available law enforcement, medical, or other

professional reports, and shall also provide copies of abuse hotline reports pursuant to state and federal confidentiality requirements.

And inform the court of:

1. Any identified current or previous case plans negotiated in any district with the parents or caregivers under this chapter and problems associated with compliance;

2. Any adjudication of the parents or caregivers of delinquency;

3. Any past or current injunction for protection from domestic violence; and

4. All of the child's places of residence during the prior 12 months.

The shelter judge must:Appoint a GAL unless “such representation is

unnecessary”Inform parents of right to counsel at shelter

and at each subsequent hearingObtain permanent mailing address from each

party and advise each party that the address will be used by the court and the petitioner for notice purposes until a written change of address is filed

In an order granting shelter the judge mustIdentify the parties who are presentFind that placement in shelter is necessary

Child has been abused, abandoned, etc.Necessity of removal/provision of appropriate

services will not eliminate the need for removalPlacement is in child’s best interestsContinuation in home is contrary to child’s

welfare, substantial and immediate danger, cannot be mitigated by provision of appropriate services

In an order granting shelter the judge must alsoFind PC to believe that child is dependent or

court needs additional time (not more than 72 hours) to obtain and review documents to appropriate determine risk to child

Reasonable efforts –OR-Deemed (excused) reasonable efforts

Reasonable efforts excused whenEmergencyHome presents a substantial and immediate

danger which cannot be mitigated by preventive services

Child cannot safely remain at home (either there are no preventive services or even with available services child’s health and safety cannot be ensured)

Parent has committed an act under Sec. 39.806(1)(f) through (i) for “expedited TPR”

Order granting shelter must also state:That the court notified the parents, relatives

providing care, of the importance to appear and participate in every hearing and the date time and place of the next hearing

That the court told the parents that they have a right to be represented by counsel at every hearing

That the court notified relatives who are providing out-of-home care for a child that they have the right to attend all subsequent hearings, to submit reports to the court, and to speak to the court regarding the child, if they so desire.

VisitationDCF must provide the court a

recommendation for scheduled contactCourt must determine visitation rights absent

a clear and convincing showing that visitation is not in the child’s best interests

But to the contrary if Sec. 39.0139 appliesVisitation must begin with 72 hours unless

DCF provides “justification” and court should make written findings

Court must alsoRequire parents to provide financial

information within 28 days for purposes of child support

If child has guardianship estate, then guardianship estate may in some situations be required to support

Medical and educational recordsCourt must ask the parents to provide

consent and produce information or make records available in the absence of parents’ consent if appropriate

May appoint a surrogate for a child who has a disability

The order granting shelter must also containA written determination as to whether the

DCF has made a reasonable effort to prevent or eliminate the need for removal or continued removal of the child from the home. -AND-

A description of which specific services, if available, could prevent or eliminate the need for removal or continued removal from the home and the date by which the services are expected to become available.

If services are not available:The written determination must also contain an explanation describing why the services are not available for the child.

At the end of the shelter hearing if shelter has been granted: DCF must provide referral information to parents. Participation in

the services shall not be considered an admission or other acknowledgment of the allegations in the shelter petition.

The court shall notify all parties in writing of the next scheduled hearing to review the shelter placement. No later than 30 days after placement of the child in shelter status, in conjunction with the arraignment hearing. Can be sooner, and can be more.

The court shall inquire of the parent whether the parent has relatives who might be considered as a placement for the child, and the parent must provide identification and location information regarding relatives. The court shall advise the parent that the parent has a continuing duty to inform the DCF of any relative who should be considered for placement of the child.

The court shall advise the parents that, if the parents fail to substantially comply with the case plan, their parental rights may be terminated and that the child's out-of-home placement may become permanent.

Additional good practicesPaternity inquiry under Sec. 39.503, and written

order regarding resultsBegin appropriate concurrent case planning

from the beginning (identify relatives, order home studies, ICPC compliance, obtain substance abuse evaluations as provided in Sec. 39.407)

Address service needs of childRedirect existing child supportInclude child in copies and notices if appropriateEnsure compliance with deadlines, time limits