CONDUCTING A SHELTER HEARING

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CONDUCTING A SHELTER HEARING

• SHELTER BASICS
• Judge Sue Robbins
• Circuit Judge, Fifth Circuit, Marion County

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INTRODUCTION TO APPLICABLE STATE AND FEDERAL LAW

• ASFA (42 USC Secs. 620-632, 670-679) the
  Adoption and Safe Families Act
• 45 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 removal
• Written findings

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INTRODUCTION TO APPLICABLE STATE AND FEDERAL LAW

• Sec. 39.401, Fla. Stat. taking a child into
  custody
• Sec. 39.402, Fla. Stat. placement in shelter,
  conducting shelter hearing, written order
• 65C-30.009-30.012 Services to prevent removal
  removal and shelter services following removal

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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 Dependency
• Dependency petition filed
• Shelter petition filed in existing
• case 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?

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Sec. 39.401 A child may be taken into custody
by DCF or LEO

• On sworn testimony before or after petition
• Only 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

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Sec. 39.401 If a child is taken into custody by
LEO, LEO shall release child to

• Parent or LC
• Responsible adult approved by court (?)
• Responsible adult relative or adoptive parent of
  childs sibling (given priority when in BIs)
• Responsible adult approved by the DCF
• DCF Give sufficient info to establish PC that
  child has been abandoned, abused or neglected or
  otherwise dependent

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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

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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.

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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

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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

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Whats 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.

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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)

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Juv. Rule 8.305

• The court shall conduct an informal hearing
  within the time period required by law
• The 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

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Reversible error not to allow parent to present
evidence at shelter on PC of dependency

• Parent 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)

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PC must be based on law and must be based on
credible facts not automatic

• Childs 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)

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PC/Shelter Procedures

• At shelter hearing, to continue child in shelter
  care, DCF must
• Establish PC that reasonable grounds for removal
  exist
• And that appropriate and available services will
  not eliminate the need for placement
• Sec. 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).

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PC/Shelter Procedures

• To order placement, the Court must
• Determine 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).

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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).

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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.

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Required Notice to Parents

• Notice 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 court
• Parents get written notice of opportunity to be
  heard and present evidence right to counsel

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Right to Counsel

• Applies at shelter and at each subsequent hearing
  under Sec. 39.013
• Court 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

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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.

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The shelter judge must

• Appoint a GAL unless such representation is
  unnecessary
• Inform parents of right to counsel at shelter and
  at each subsequent hearing
• Obtain 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

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In an order granting shelter the judge must

• Identify the parties who are present
• Find 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 removal
• Placement is in childs best interests
• Continuation in home is contrary to childs
  welfare, substantial and immediate danger, cannot
  be mitigated by provision of appropriate services

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In an order granting shelter the judge must also

• Find 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

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Reasonable efforts excused when

• Emergency
• Home 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 childs health and safety cannot be
  ensured)
• Parent has committed an act under Sec.
  39.806(1)(f) through (i) for expedited TPR

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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.

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Visitation

• DCF must provide the court a recommendation for
  scheduled contact
• Court must determine visitation rights absent a
  clear and convincing showing that visitation is
  not in the childs best interests
• But to the contrary if Sec. 39.0139 applies
• Visitation must begin with 72 hours unless DCF
  provides justification and court should make
  written findings

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Court must also

• Require 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

30
Medical and educational records

• Court 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

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The order granting shelter must also contain

• A 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.

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If services are not available

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

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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.

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Additional good practices

• Paternity inquiry under Sec. 39.503, and written
  order regarding results
• Begin 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 child
• Redirect existing child support
• Include child in copies and notices if
  appropriate
• Ensure compliance with deadlines, time limits